Gillett v. Achterberg

325 S.W.2d 384 (1959)

Sam B. GILLETT, Jr., Petitioner, v. John F. ACHTERBERG, an Individual D/B/A The Jno. F. Achterberg Company, Respondent.

No. A-7323.

Supreme Court of Texas.

June 17, 1959.

Rehearing Denied July 22, 1959.

*385 Andress, Lipscomb, Peticolas & Fisk, El Paso, for petitioner.

Edwards, Belk, Hunter & Kerr, El Paso, for respondent.

PER CURIAM.

The trial court granted petitioner's motion for summary judgment, but the Court of Civil Appeals reversed and remanded the cause for a trial on the merits. 322 S.W.2d 306. As we read the opinion of the Court of Civil Appeals, it held: (1) that whether or not petitioner acted in good faith in disposing of the business is a material question of fact which was placed in issue by the pleadings and affidavits, and (2) that a question of fact was also raised as to the sense in which the expression "non-cancellable" was used by the parties in the contract. The decision thus rests upon two separate and independent grounds, either of which, if correctly decided or immune to review, will support the judgment of reversal and remand. The application for writ of error does not question the first of these holdings. No contention is made that good faith is not a material issue, or that such issue was not raised by the pleadings and affidavits in this case. We are not entirely satisfied that an issue of good faith is shown by the pleadings and affidavits or that there is any ambiguity in the contract which might affect the rights of the parties in this suit. Since the first question is not raised in the application for writ of error, however, we would be required to affirm the judgment of the Court of Civil Appeals even if the application were granted and every point of error therein sustained. City of Deer Park v. State, 154 Tex. 174, 275 S.W.2d 77. The application for writ of error is accordingly refused, no reversible error.