On Motion for Rehearing. In their motion for rehearing appellees complain of this court's finding of fact in its original opinion that: "The 1/64 overriding royalties retained by Follett were conveyed to him as attorney's fees or compensation for his legal services to the owners of the land."
It was the court's understanding that the quoted finding of fact was undisputed from numerous statements to that effect made by the appellants in their brief which appellees failed to challenge in their brief. The finding was made under Rule 419 of Texas Rules of Civil Procedure, which provides that any statement made by appellant in his original brief as to the facts or the record may be accepted by the court as correct unless challenged by opposing party.
A re-examination of the record discloses, however, that while appellants contended that said 1/64 royalty was conveyed to Follett as compensation for his legal services rendered in procuring said leases and there is evidence in the record to support this contention, Follett testified that "he had received the override" in question "by reason of my work with MacDonald" and that "it was just my share of the profits in the work we were doing." In view of this testimony and the fact that the question as to whether an agreement for the sharing of profits existed between Follett and MacDonald is an ultimate issue of fact in the case we think that it should have been submitted to the jury, as stated in our original opinion. For this reason the quoted finding of fact is withdrawn from our original opinion.
Appellees' request that we make additional findings of fact, including a finding that appellee Follett did not attempt to obstruct and hinder MacDonald in his efforts to procure the "1937 leases," is overruled. As stated in our original opinion, there is evidence in the record to support appellants' contentions in this regard and this question should, we think, have been submitted to the jury.
The other findings of fact requested by appellees are, in our opinion, evidentiary in their nature and not confined to ultimate issues in the case and are not such as are contemplated under Rule 455, Texas Rules of Civil Procedure.
We were in error in stating in our original opinion that appellees had, in their pleadings, alleged that "It being the understanding between Mr. MacDonald and I that whatever override we should receive we would divide it." An examination of the record discloses that the quotation in question was not a part of appellee's pleadings, but was part of his testimony in reply to a question as to their agreement for a division of whatever royalties they might receive in connection with and growing out of their alleged joint adventure.
The above corrections in no way affect the final determination of this cause as embodied in our former opinion. Motions for rehearing by both appellants and appellees are refused.
Motions refused. *Page 678