Poynor v. Varner
| Decision Date | 26 March 1954 |
| Docket Number | No. 2943,2943 |
| Citation | 266 S.W.2d 462 |
| Parties | POYNOR v. VARNER. |
| Court | Texas Court of Appeals |
Woodruff & Holloway, Davis & Allcorn, Brownwood, for appellant.
Levie Old, Callaway & Callaway, Brownwood, for appellee.
In a trial to the court, Varner recovered judgment against Poynor for the balance of a contract price for drilling a well. Poynor was denied recovery on his cross-action for the amount paid on the contract. Poynor has appealed.
The contract sued on provided that Varner was to drill the hole with due diligence and in a good and workmanlike manner. Poynor defended and filed a cross-action to recover what he had paid under the contract on the ground that Varner breached the contract because he did not drill with diligence and in a workmanlike manner, but drilled a defective, crooked hole from which oil, if it had been found, could not have been profitably produced.
Poynor's points are, in effect, that the court erred in rendering judgment for Varner on his cause of action and on Poynor's cross-action because the preponderance of the evidence showed that Varner did not drill with due diligence and in a good and workmanlike manner but breached his contract and drilled a worthless hole.
Appellant's points that the findings are against the preponderance of the evidence do not present the point that such findings were so against the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. In re King's Estate, Tex.Sup., 244 S.W.2d 660, 662; Texas Employers' Ins. Ass'n v. Moran, Tex.Civ.App., 261 S.W.2d 855, 856 (). However, after a careful study of the statement of facts, we think the result would probably have been the same. In determining whether the findings are against the preponderance of the evidence we are required to consider only the evidence favorable thereto and to disregard all evidence to the contrary and if the evidence favorable thereto raises a question of fact on which reasonable minds might differ we are not authorized to set aside the findings. See Buss v. Robinson, Tex.Civ.App., 255 S.W.2d 339, 341 (R.N.R.E.); Springall v. Fredericksburg Hospital and Clinic, Tex.Civ.App., 225 S.W.2d 232, 233; Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508, 511; Ruebeck v. Hunt, 142 Tex. 167, 176 S.W. 738, 740, 150 A.L.R. 775; Coxson v. Atlanta Life Insurance Co., 142 Tex. 544, 179...
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Vaughn v. Vaughn
...Court of Civil Appeals to examine the record as a whole.' Appellee in support of his counterpoint 10 cites the case of Poynor v. Varner, Tex.Civ.App., 266 S.W.2d 462, 463. We quote from the court's decision in this case as 'Appellant's points that the findings are against the preponderance ......
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Reed v. Reed
...which reasonable minds might differ, the appellate court is not authorized to set aside the findings of the trial court. Poynor v. Varner, Tex.Civ.App., 266 S.W.2d 462; Springall v. Fredericksburg Hospital and Clinic, Tex.Civ.App., 225 S.W.2d We have concluded that the trial court's judgmen......
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E.G.M., In re
...fails to allege that the finding is so against such a preponderance of the evidence as to be manifestly unjust or clearly wrong; Poynor v. Varner, 266 S.W.2d 462 (Tex.Civ.App.--Eastland 1954, no writ); Vaughn v. Vaughn, 279 S.W.2d 427 (Tex.Civ.App.--Texarkana 1955, writ ref'd n.r.e. in acco......
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Pollard v. El Paso Nat. Bank
...This point actually was not raised in the motion for new trial, and is not properly before this court in any event. Poynor v. Varner, Tex.Civ.App., 266 S.W.2d 462; DeWinne v. Allen, 154 Tex. 316, 277 S.W.2d 95. Regardless of the above authorities, we have carefully considered the evidence, ......