The opinion
On Motion for Rehearing.
By our original opinion in this case, we reversed the judgment of the trial court and remanded the cause for another trial. Plaintiff in error (defendant below) in his motion for rehearing complains that we remanded the case when we should have rendered judgment for him against defendant in error (V. U. Cloer, plaintiff below), and leave the judgment rendered between plaintiff in error and his code-fendant Kemgas Cotton Seed Delinting Company undisturbed.
The findings of fact filed by the trial court showed conclusively that plaintiff in error had in fact formed a Texas corporation and procured a charter therefor; that defendant in error had conveyed to the corporation the letters patent which became an asset of the corporation, and that, after the creation of the corporation, 25 per cent, of the capital stock was in turn conveyed to defendant in error which fully performed the obligations of plaintiff in error under the terms of the contract pleaded by defendant in error on instituting the suit. Based on his findiñgs of fact, the trial court concluded, as a matter of law, that defendant in error was entitled to recover title to an undivided -25 per cent, interest in the letters patent, in that plaintiff in error should be quieted in his title to the remaining 75 per cent, interest therein. Judgment, was rendered on these conclusions of law and so entered. The judgment was not in conformity with the case pleaded nor agreeable with the facts found. Under the facts - found, the trial court should have entered judgment for the defendant below.
In the absence of a statement of facts, as in this case, we are bound by the facts found by the trial court. From the facts so found, it is evident that defendant in error not only did not prove his case as alleged, but that the plaintiff in error disproved it, establishing to the satisfaction of the court that he performed the contract he had undertaken, and defeated the right of defendant in error to have the contract rescinded. We remanded the cause primarily because we could not know from the facts found by the court whether the case had been fully developed upon the trial.
Rev. Civ. Statutes, art. 1856, provides: “When the judgment or decree of the court below shall be reversed, the court shall proceed to render such judgment or decree as the court below should have rendered, except when it is necessary that some matter of fact be ascertained or the damage to be assessed or the matter to be decreed is uncertain, in either of which cases the cause shall be remanded for a new trial.”
A very careful examination of the authorities construing and applying the above article of the statutes leads us to believe we were in error in its application to this case. We perceived from the record that little or no evidence was adduced by defendant in error to sustain his contention, but that such as was before the court was that offered by plaintiff in error, or else the court had erroneously interpreted it. But it seems to be the rule of law in this state as laid down by our Supreme Court that, unless it appears from the record of the trial below that a party has been deprived of some right by an improper ruling of the court, or for failure to produce evidence because o£ a legitimate and legal excuse for not having 'done so, the cause should not be reversed and a new trial required.
In the case of Sovereign Camp, Woodmen of the World, v. Patton, 117 Tex. 1 , 295 S.W. 913 , 915, it was said: “The stat-’ ute quoted (article 1856) is in its terms mandatory. While conferring a power on *362 the Courts of Civil Appeals, it also created a rule of practice for their direction. The evident purpose of the statute was twofold: First, to require such courts to finally dispose of cases submitted to them, and thus save the time and expense of repeated hearings, where the same could be done with substantial justice to the parties, and without disregarding the substantial rights of either; and also to secure to the complaining party the full benefit of the judgment improperly denied to him by the lower- court. The obligation to do so in a proper case has been clearly recognized and is not to be lightly disregarded. Any discretion which the courts may exercise in construing and applying the exception branch of the statute is a judicial, and not an arbitrary, one. In some cases the Courts of Civil Appeals have no option.”
Further commenting on the exceptions in the same case, the court says: “If the record also showed that such erroneous view pf the law caused the trial court to refuse to permit defendants in error to fully develop their case, then this cause should- be remanded for a new trial. Hanks v. Hamman (Tex.Com.App.) 289 S.W. 993 . Chapman v. Witt, supra [(Tex.Civ.App.) 285 S.W. 331 ].”
Again: “Defendants in error have not been denied any advantage which they would have in a second trial of the case, except that of having another chance of a verdict in their favor. They were denied no right by the trial court of which they complain here.”
The rule announced in the W. O. W. v. Patton Case, supra, has been consistently followed by the cases of Davis v. National Bond & Mortgage Corporation (Tex.Civ.App.) 45 S.W.(2d) 272 ; Smith v. El Paso & N. E. Ry. Co. (Tex.Civ.App.) 67 S.W.(2d) 362, 367 . In- the last-cited case the court said: “The want of uniformity in the opinions seems to result from the application the courts make of the exceptions set out in the statute quoted, and which the Supreme Court, in' the case from which we have quoted [Sovereign Camp, W. O. W., v. Patton], says ‘have definitely qualified the peremptory character of its initial provision’ of the statute.”
Other authorities cited by plaintiff in error in his motion, bearing upon the question, are Arkansas Fertilizer Co. v. Bank, 104 Tex. 187 , 135 S.W. 529 ; Tripplehorn v. Ladd-Hannon Oil Corporation (Tex.Civ.App.) 8 S.W.(2d) 217, 222 .
There is nothing in the record before us to indicate that defendant in error was in any way dissatisfied with the findings of fact by the trial court, and nothing to indicate he was deprived of the introduction of any evidence tendered. In fact, he filed no brief in this appeal and did not appear by counsel and present an oral argument upon the submission of the case, to this court. As stated in the language of the court in Tripplehorn v. Ladd-Han-non Oil Corporation, supra: “There is nothing in the record to indicate that the trial court by any ruling induced the ap-pellee upon the trial of this case to forego any right or remedy.”
It was said in Benavides v. Benavides (Tex.Civ.App.) 218 S.W. 566, 569 (writ refused) : “Appellee was satisfied with the findings of fact, and no effort to alter, amend, or add to them was made, and, those findings not supporting the judgment, there is no call for remanding the cause. It must be considered on those findings which appellee deemed were sufficient to uphold the judgment of the court.”
For the reasons shown, the motion of plaintiff in- error for rehearing is granted and that part of our original opinion remanding this cause for another tidal is withdrawn, and, upon our order of reversing the judgment of the trial court, judgment is here rendered for plaintiff in error, without in any way disturbing the judgment rendered as between the defendants below from which no appeal was taken.
Motion for rehearing granted and cause reversed, and judgment rendered as per this opinion.