Tripplehorn v. Ladd-Hannon Oil Corp. , 1928 Tex. App. LEXIS 642 ( 1928 )

On Motion for Rehearing. Appellee has filed herein a very comprehensive motion for rehearing, in which our conclusions in the original opinion are attacked by various assignments of error. These assignments naturally fall into three groups: (1) Those that complain of the action of this court in holding that a deed or written instrument such as we have in this case cannot be canceled for a failure of consideration; (2) those that complain of the action of this court in holding that a deed cannot be executed and delivered to the grantee, to take effect upon a condition precedent; and (3) those that complain of the action of the court in holding that the question of fraud is wholly out of this case, and that, therefore, judgment should here be rendered for appellant.

We believe each group of assignments is sufficiently answered by the opinion heretofore rendered in this cause, and no extended discussion will be made of the assignments. However, we desire to make a few observations relative to the third group of assignments.

A careful review of this record and the assignments of error presented in this motion for rehearing confirms in us the conviction that in our original opinion we are correct in holding that the question of fraud is not before us in this case and that the plain mandate of the law is that this court should reverse and render this case as was originally done.

Appellee, in its supplemental brief and argument filed in this court after the submission thereof, but before the original opinion of this court was delivered, stated:

"Appellees are not asking to reverse the cause, and after due consideration we are unable to see where cross-assignments of error made by appellee would have placed it in any better position before this honorable court."

This fixes the status of the appellee's contention in so far as the question of fraud is involved, and practically amounts to a concession that it is before this court without cross-assignments of error relating to that question, from which it follows that appellees have waived such an issue. There is nothing in the record to indicate remotely that the trial court by any action or ruling on its part misled the appellee in the pleading and development of its case, or that the court refused to permit it to fully develop its case. There is nothing in the record to indicate that the trial court by any ruling induced the appellee upon the trial of this case to forego any right or remedy, either of law, equity, or fact to which it was entitled under its pleading and the testimony.

So viewing the record, we necessarily adhere to the conclusions expressed in our original opinion, and in futher support of that opinion, both on the question of fraud, as well as our duty to reverse and render, we cite the following authorities, which to us appear conclusive: Tarrant County v. Rogers, 104 Tex. 224, 135 S.W. 110, 136 S.W. 255; Sovereign Camp, W. O. W., v. Patton et al. (Tex. Sup.) 295 S.W. 913; Western Union Telegraph Co. v. Cates (Tex.Com.App.) 291 S.W. 193; Hume v. Carpenter,188 S.W. 707 (Tex.Civ.App. writ refused); Rules 101 and 101a, 159 S.W. xi.

Appellee's motion for rehearing is overruled.