Vise v. Foster

On Appellant’s Motion For Rehearing.

TIREY, Justice.

Point 1 in appellant’s motion for rehearing is: “The Court of Civil Appeals erred in failing to hold that the furnishing of tank cars by the buyer-appellee was a condition precedent to the duty of the seller-appellant to deliver oil free on board into such cars and, the buyer having alleged but having offered no evidence of performance of such condition, the seller’s promise to deliver never was activated into a duty and, 'a fortiori, never was breached.”

Our view is that Point 1 assumes a factual situation contra to' the undisputed evidence…