Rodriguez v. Garcia , 1958 Tex. App. LEXIS 1755 ( 1958 )

309 S.W.2d 509 (1958)

Tomas M. RODRIGUEZ, Appellant,
v.
Fernando GARCIA, Appellee.

No. 13296.

Court of Civil Appeals of Texas, San Antonio.

January 8, 1958. Rehearing Denied February 5, 1958.

Gerald Weatherly, Philip A. Kazen, Laredo, for appellant.

Morales & Davila, Laredo, for appellee.

BARROW, Justice.

This suit was filed by appellant, Tomas M. Rodriguez, against appellee, Fernando Garcia, upon a verified account for goods, wares and merchandise alleged to have been furnished to a partnership, appellant alleging that said business was owned and operated by appellee and one Pedro Collazo as partners. The appellee answered denying both the account and the existence of such partnership under oath. The trial was to the court and judgment was rendered that appellant take nothing as against appellee. This appeal is from that judgment.

The trial court filed findings of fact and conclusions of law and, among other things, found that no partnership existed between appellee and said Collazo, that their relation was that of owner and contractor, and concluded that appellee was not liable to appellant.

The only question to be decided in this case is, Do the findings and judgment of the trial court have support in the evidence? The appellant contends that the uncontradicted evidence shows that appellee was a partner of Collazo, and therefore liable for the debts incurred by Collazo. We overrule this contention. Where the trial court makes and files findings of fact, if they have support in the evidence, those findings are binding upon the appellate court, and in passing upon this question we must consider only the evidence favorable to the findings and reject all evidence to the contrary. Moreover, we must indulge every inference reasonably deducible from the evidence which supports the findings. Gray v. Luther, Tex.Civ.App., 195 S.W.2d 434; Harden v. Federal Farm Mortgage Corp., Tex.Civ.App., 223 S.W.2d 39; City State Bank in Wellington v. Wellington Independent School District, Tex.Civ.App., 173 S.W.2d 738, affirmed 142 Tex. 344, 178 S.W.2d 114.

The evidence shows that appellee engaged Collazo, a skilled building contractor, to erect two houses for him. Collazo was to furnish all labor and material and he was to be paid cost plus 10%. The houses were built and Collazo was paid as per agreement. The evidence also shows that appellee built another house and that Collazo supervised the building of this house, but made no charge therefor. The evidence further shows that Collazo built another house, for himself, and that appellee furnished the finances for the building and took a deed of trust from Collazo to secure the loan. Both Collazo and appellee testified, and both denied that they ever entered into any joint venture or entered into any agreement to share either profits or losses, or ever did share in such profits or losses.

We regard the evidence as sufficient to support the trial court's findings.

The judgment is affirmed.