Little v. Kennedy , 195 S.W.2d 255 ( 1946 )

On Motion for Rehearing. Although appellee says he would not have accepted the tender nor used it if appellant had deposited the thousand dollars, the amount actually required to be paid for said year under the terms of the contract, to his credit in the bank, he still complains in his motion for rehearing because the tender was not actually made prior to its being made by appellant in the trial court. We believe the tender made by appellant in his pleadings and in open court met the requirements of the law in such cases according to the authorities last cited in the original opinion.

Appellee likewise charges that he has been awarded something by this court for which he did not ask and that there are no pleadings to support our judgment. Appellant pleaded not guilty and further pleaded the terms of the contract, that he had not defaulted in its terms but had complied with the same, made a tender of one thousand dollars to appellee and it is admitted that he renewed his tender at the trial. The judgment rendered by this Court is therefore supported by appellant's pleadings and it is a well established rule in this state that a judgment is authorized if it is supported by the pleadings of either party to a suit. Whittington v. Glazier, Tex. Civ. App. 81 S.W.2d 543 (writ refused); Ramsay v. Rouse, Tex. Civ. App. 68 S.W.2d 317 (writ refused).

Appellee further complains that our construction of the contract in question is "unfair and unjust" and "works an injustice on appellee." Our reply to such complaint is taken from appellee's brief in his attempt to support the judgment of the trial court where he correctly stated a rule of law as follows:

"The law leaves the contract just where the parties themselves have put it, and the court will enforce it as made, without regard to questions as to whether the parties contracted wisely or foolishly, or as to whether, in the light of subsequent events, a hardship may be worked."

He supported such rule by the following authorities: Rankin v. Rhea, Tex. Civ. App. 164 S.W. 1095; Moore-Seaver Grain Co. v. Blum Milling Co., Tex. Civ. App. 264 S.W. 551; Blair v. Bird, Tex. Civ. App. 20 S.W.2d 843; 10 Tex.Jur. 279, Sec. 163.

We have carefully examined appellee's motion for rehearing and the same is overruled.