The opinion
On Motion for Rehearing and Motion to Correct Statements and Findings of Fact.
The portion of the opinion quoted:
“Of course, in the latter case, Gillett could have, before the interest was acquired, waived his interest by parol agreement, or have abandoned any interest by repudiating the contract and failing to perform his part. The pleadings, proof, and verdict of the jury are all sufficient to support the judgment in this respect”
—was first a conclusion of law that the written contract' with Mary Luna Jackson did not in fact provide for payment of any part of the fee, for representing her, in lands, and we think a proper conclusion.
It is next urged that the statement that the pleading, evidence, and verdict as to the waiver, being before any interest accrued, is incorrect. The opinion up to that point makes no statement as to where the waiver took place, but simply declares, that under the law applicable to the pleadings and facts Gillett could waive his interest in the Mary Luna Jackson fee, because there were no pleadings or evidence that Hudspeth and Gil-lett as a partnership had a contract in writing providing for- a conveyance of land in payment of any portion of the fee; therefore, under such state of fact, he could by parol agreement before the interest was acquired waive such interest by repudiating and abandoning the contract. The evidence shows that Gillett, immediately upon seeing the contract with Mary Luna Jackson, repudiated it, because it provided that the attorneys should pay her personal expenses pending the litigation. Again, the evidence shows that, as pleaded, he repudiated after the conference with the attorneys for the Catholic Church at San Antonio, and again when the final compromise agreement with the proponent of the will was presented to him.
As to the proposition that the seventh assignment does not treat of the Fannie Jackson fee, the second proposition thereunder speaks of the “Jackson estate fees.” Wo took this to be applicable to both fees. The other propositions thereunder are answered by other parts of the opinion.
As to the third matter urged in the motion to correct the findings, that the Fannie Jackson contract antedated the repudiation, this contract is dated April 7, 1912, but recites that it had theretofore been entered into, and Hudspeth testified that after compromise with the Cardinals of the Catholic Church, in which they agreed to pay the $100,000 Fannie Jackson fee, Gillett refused to sign, and again asserted that he would have no interest in the fee (pages 95 and 96, S. F.). Again (on page 108, S. F.) Hudspeth says:
“For looking after the Fannie Jackson interest I was required to take this fee in land at $4.50 per acre before the( compromise agreement and partition” „
—and hence before the last assertion of Gil-lett that he would take no interest, thus clearly showing that the contract antedated the declarations of repudiation, and according to the record the most of the work in the case, to finally acquire such interest as Huds-speth now has, which Gillett seeks to divide, was done after the date of the writing, and there is no evidence in this record that Gil-lett performed any services as a partner in the prosecution of the suits, etc., whereby the property as a fee was finally acquired.
Overruled.