The opinion
On Motion for Rehearing.
Among the many grounds urged for rehearing by Kimbell Milling Co., our attention has been called to an expression in our original opinion, which must be corrected. We assume full responsibility for the error. We stated that “judgment was entered in favor of Greene for the value of 11,050 bushels of wheat at the stipulated price of $1.04 per bushel”. As a matter of fact, the statement is a fair résumé of the holding except that the number of bushels was 11,050½. We inadvertently overlooked the provisions of the subsequent judgment or order overruling Kimbell’s amended motion for new trial, in which the original judgment was amended and reformed, for reasons recited in the order to the effect that in the valuation placed on the wheat at Fort Worth, Texas, an item of 21 cents per bushel was added for the freight charge from Floydada to Forth Worth, Texas, and by the judgment so reformed, Greene was allowed recovery for 11,050½ bushels of wheat at 84 cents per bushel, the market value at Floydada, Texas, the place where Boothe and Kimbell converted it. We therefore withdraw the above-quoted statement taken from the original opinion, and will treat the judgment of the trial court as amended and reformed by it.
Irrespective of any added value the wheat may have had at Fort Worth, Texas, after the conversion, whether it was occasioned by added freight charges or not, Greene would not be entitled to recover that excess amount. In its motion before us, Kimbell urges that an additional three cents per bushel should be deducted from any recovery by Greene because of handling charges at the time Boothe delivered the wheat to Kimbell. Certainly Greene had nothing to do with that deal, but it is his theory that it was all without his knowledge or consent. We therefore overrule the contention of Kim-bell in this respect.
Counsel for Kimbell respectfully suggests they do not believe we would want our opinion to rest upon an erroneous impression of the facts-, and then call our attention to several instances believed by them to justify the contention that we had done so. We had occasion to mention what was found in the record as a stipulation, which reads: “That under a general custom of many years standing * * In referring to that statement, we said it in substance provided that for “several” years prior to 1937, a general custom prevailed in the grain area. We think a reference of “several years” to the custom is not so far from an expression like “many years” as to materially alter its meaning.
Our attention is called to our language in connection with that purported stipulation, where we said: “The stipulation, however, was qualified by additional statements to the effect that neither Greene nor his assignors knew of such general custom at the time they stored their grain with Boothe.” Counsel complains of the language used as not being supported by the record and says: “The stipulation merely was that the plaintiff did not admit that such custom was known to Greene and his assignors.” They say our statement is “an absolute contradiction of the record”. Neither we nor counsel attempted to quote the language actually used; we only stated what we believed to be the “effect” of it. Following the statement which was termed a stipulation, the wording referred to is as follows: “But it is not agreed by plaintiff but on the *999 contrary is denied that such custom was known to plaintiff, and those whose claims he holds, at the time of the deposit of such grain by such parties in Boothe Mill & Elevator Co.”, etc. We do not consider our language is an absolute contradiction of the record, but that it is substantially correct as stated by us.
We are criticised for saying, “It was conclusively established in this case that Boothe did receive wheat for storage but not for hire”. There are many parts of the record shown in the testimony of Greene, as well as by Boothe, to support our statement. It is argued that because there was a custom of charging three cents a bushel for handling if Greene should sell to some one other than Boothe, this charge would constitute an indirect charge for storage. Since Greene did not sell his wheat to any other person, and there is no evidence of any intention on his part to do so, it cannot be said that such custom constituted a charge for storage in this case.
It is claimed that the record does not support our statement that “Greene and his assignors believed their wheat was stored in separate bins”. Greene did say in substance that he had never been inside the elevator but by other parts of his testimony he said in substance that Boothe had told him that the bins had been treated to prevent wevils, and that this statement was a further inducement for him to store there. He further testified that he knew that the machinery elevated wheat up from the dump pit and the cups would empty it into bins and in this way he “figured that it was put in the elevator in separate bins, and not all in one”. He admitted that he did not know much about the manner in which it worked.
Kimbell assigns error in its motion to our overruling other points raised by it on the original hearing. Some of these points were overruled by us without detailed discussion. We now think point No. 8 should have our notice. In that point the question was raised and seriously urged that Kimbell should have recovered judgment in the trial court, because even though it be shown that Kimbell did receive a large quantity of wheat from Boothe, it was not shown that Kimbell did in fact receive the identical wheat Greene claims to have stored with Boothe. For, it is contended, that Boothe was grinding wheat at all times involved, and the amount so ground was not established, nor was it shown that the wheat so ground was nob that claimed by Greene to have been con-, verted. We think the testimony of Boothe establishes the fact that he did not grind any part of Greene’s wheat claimed to have been stored, as distinguished from wheat actually bought and paid for by Boothe. After many questions were asked and answered relating to grinding by Boothe, this question and answer appear in the testimony: “Question: Well, in that common mass when you were running that mill, you used actual wheat in there that the Boothe Mill and Elevator Company had bought and paid for? Answer: Yes, sir.” This evidence, we think, is sufficient to support the court’s finding which in effect was that Boothe did not grind any part of the wheat in controversy.
The motion contains parts of the testimony given by Greene and his assignors which tend to show their understanding of customs prevailing in that wheat area as relating to wheat raisers and local elevator companies. Greene’s testimony shows that he only dealt with Boothe in such matters from 1928 or 1929 up to 1937, when he claims to have had a special arrangement with Boothe in regard to his grain stored. He said he knew nothing about any arrangements other people had with Boothe over that period but knew only of his own. He distinguished the relation^ ship existing from 1928 to 1936, inclusive, from that had in 1937. The testimony of his assignors, in the main, was to the same effect, except that some had dealt with Boothe longer than between the years mentioned. The testimony of each cannot be harmonized in all respects. A fair construction of what they said in some instances contradicts other parts, but such contradictions do not destroy those parts contrary thereto, they only raise issues of fact for determination by the court sitting in lieu of a jury. New St. Anthony Hotel Co. v. Pryor, Tex.Civ.App., 132 S.W.2d 620 , writ refused; Le Master v. Fort Worth Transit Co., Tex. Sup., 160 S.W.2d 224 . Taken as a whole, there is evidence of probative value to support the judgment of the trial court. In determining this; those parts of the testimony contrary to the facts believed by the trial court must be disregarded, and we must look alone to that which did support the judgment and the testimony will be considered in its most favorable light in support of the judgment; *1000 Long-Bell Lumber Co. v. Bynum, Tex.Com.App., 158 S.W.2d 290 . In cases like this, the court is the trier of the facts and appellate courts will not substitute their opinion on the testimony for that of the trial court. The last above-cited case supports this statement of the law. See, also, 3 Tex.Jur. p. 1102, sect. 771.
We believe a proper disposition has been made of this appeal, and with the foregoing comments and correction of our judgment, the motion for rehearing is overruled.