The opinion
CHADICK, Chief Justice
(concurring).
Judge FANNING’S opinion probably states the facts sufficiently, but it will add some clarity to enlarge upon them to a small extent. The written partnership agreement provided for the contingency of a doctor withdrawing and the clinic continuing with such other partners as remained, as well as provision for a dissolution of the partnership. Certain rights accrued to a party withdrawing that did not accrue under the terms of the dissolution agreement and would not accrue if the partnership was dissolved by law. Three of the partners, including Dr. Andrew G. Goesl, elected to withdraw and claim the benefits of the withdrawal provisions rather than force a dissolution by the terms of the agreement, or under such rights to a dissolution as they might have had under the law. The withdrawing partners were paid in excess of $20,000 each by the remaining partners over a period of twelve months from the date of their withdrawal. Dr. Goesl observed the restrictive covenant against practicing medicine in Bowie County, Texas and Miller County, Arkansas for the twelve month period during which he was receiving monthly installments of the benefits accruing under the withdrawal provision.
After receiving the last payment he repudiated the contract and began practicing medicine contrary to the restrictive covenant, but limited his activities in that respect to Miller County, Arkansas.
The record in this court was regularly assigned to Judge Fanning, and he has written an opinion recommending an affirmance of the trial court. Judge Davis refuses to participate. If I do not consent to an affirmance the case will have to await a transfer to another Court of Civil Appeals, or such time that a full court here can review it. I have no experience to shed light upon one contingency, but my experience with transfers from one Court of Civil Appeals to another is that a delay of approximately twelve months would result. I feel sure a solution other than by transfer would not produce a decision sooner.
The restrictive covenant involved dates from August 11, 1958. Decision in the case must be made forthwith or the injunctive relief sought will become moot and the appellants will be denied appellate review of their case through procedural delay.
The choice, as the case is presented to me, is to agree to an affirmance or be party to denying the appellants their day in the appellate court. The course I follow appears to be the lesser evil. If the trial judge was without authority to deny the application for a temporary injunction recourse by writ of error may be had to the Supreme Court. If otherwise, a correct judgment has been entered.
The unusual circumstances just referred to have caused me to accede to an affirmance with scant study of the record and the authorities presented by the briefs of parties. However, it seems proper that I should suggest the reasons why I entertain great doubt as to the correctness of the judgment under review.
The briefs of the appellees and Judge FANNING’S opinion assert that there are four areas of disputed law or fact in which the trial court was called upon to make a decision. They are: 1). Breach of the clinic partnership contract by appellants *899 prior to any claimed breach by the appel-lee; 2). An understanding among the clinic partnership that the covenant not to practice in Bowie and Miller Counties within three years after withdrawal was not intended to apply to Dr. Goesl; 3). Conflicts in evidence respecting irreparable injury; and 4). Restrictive covenants of the nature of this under consideration are not enforceable except upon showing of reasonableness, etc.
Oral arguments prior to submission and the briefs lead me to believe that Dr. Goesl is estopped to assert a prior breach of the partnership agreement by the appellants. It seems undisputed that after the several things occurred which Dr. Goesl contends constituted a breach of the partnership agreement by the appellants, that Dr. Goesl reaffirmed the contract by claiming and accepting payments in excess of $20,000 under the contract’s withdrawal provision. To allow him on one hand to invoke the terms of the withdrawal provision and accept a substantial sum of money, and then after receipt of payment to disaffirm the contract in its entirety and assert that by reason of the appellants’ prior breach no binding contract existed at the time of withdrawal, does not comport with my understanding of equitable action.
The second area mentioned is an attempt to vary the terms of an unambiguous written agreement by parol testimony. The evidence introduced has no probative force and raises no issue of fact for determination by the trial court.
Since I have not exhaustively studied the record of the case and authorities cited I can not say that within the areas of 3 and 4 above no issue of fact for determination by the trial judge exists, nor that the legal questions presented have been erroneously decided. From Judge FANNING’S opinion I gathered that he senses that there might be other reasons than these I mention, either of law or fact, which might sustain the trial court’s judgment if an exhaustive search of the record is made, but neither he nor counsel for the appellee have suggested what other facts might be found or theories of law supported. I have not attempted a comprehensive exposition of the questionable nature of the opinion, and limit these remarks to brief reasons for questioning its propriety.
I think the authorities may be summed up, with respect to the scope of appellate review of an appeal in a temporary injunction case, as holding that review is limited to the authority of the trial judge to make the order entered, and not to review its justness. If there are questions of fact which the trial court must determine to reach a conclusion, the appellate courts must not disturb the trial court’s judgment; but the trial judge can not in the exercise of discretion ignore either law or facts, and no privilege is lodged in him to misapply the law to the conceded facts. For the reasons and on the basis stated I concur in affirming the judgment.