Glass v. Anderson , 1979 Tex. App. LEXIS 3425 ( 1979 )

ON REHEARING

Appellee, Gary Lee Anderson, moves for a rehearing by this court asserting error in our judgment filed March 29, 1979. That decision affirmed the trial court’s order of specific performance by appellant of certain earnest money contracts, and reformed the judgment increasing the interest awarded to appellant to conform with said contracts. The trial court, in its conclusion of law, stated that appellant “is not entitled to a greater amount of interest than the amount of rents and profits due” to appellee. Ap-pellee’s position is that this court is bound by the trial court’s conclusion that the interest due appellant cannot exceed the rents due appellee.

Appellant repudiated the contracts in question, and after a reasonable amount of time to perform had passed, appellee was entitled to rent, offset by interest due the appellant as agreed upon in the contract between the parties. Johnson v. Downing and Wooten Construction Co., 480 S.W.2d 254 (Tex.Civ.App.—Houston [14th Dist.] 1972, no writ). We, however, find error in the trial court’s conclusion of law that appellant was entitled to interest under the earnest money contracts only in an amount equal to the rents due appellee.

An appellate court is bound by the findings of fact made by the trial court if they are supported by the evidence, but an appellate court is not bound by an incorrect conclusion of law made by the trial judge based upon his findings of fact. Mercedes Dusting Service, Inc. v. Evans, 353 S.W.2d 894 (Tex.Civ.App.—San Antonio 1962, no writ). No fact question arose from the evidence in respect to the interest due appellant as specified in the contracts entered into between the parties. The determination of the amount of interest due appellant was a law question for the court. Texas & N. O. R. Co. v. Dingfelder & Balish, 134 Tex. 156, 133 S.W.2d 967 (Tex.Comm’n App.1939, opinion adopted). It is a proper function of this court to correct the incorrect conclusion of law and reform the amount of interest to conform with the earnest money contracts which are ordered to be specifically performed. A decree of specific performance is required to conform substantially, if not precisely, to the terms of the contract. Carter v. Smith, 184 S.W. 244 (Tex.Civ.App.—Dallas 1916, writ ref’d). Appellee’s motion for rehearing is overruled.

Appellant’s extensive motion for rehearing has been reviewed, and finding no error, in our opinion, it is overruled.