Only one of the assignments of error is •relied on for a reversal of the judgment rendered in this cause. This relates to the special charge given at the request of the defendants. The objection made to it is, that it assumes facts as proved which had not been established, and that it is a charge on the weight of evidence.

Without going into a detail of the testimony, which is conflicting upon almost every point, it is sufficient to say that the witnesses for defendants (who appear to have been believed by the jury) proved that the contract was as alleged by the defendants, viz., $20 for each car-load, and not twenty cents for each barrel sold. They also proved that all parties acted upon this version of the contract for a long period of time; and that, after the railway companies began to allow more than one hundred barrels to be shipped in a car, the parties still dealt and settled upon a basis of $20 for each car-load, no matter what was the number of barrels the car contained.

The evidence of plaintiff was directly to the contrary.

The court, aftqr having in its main charge fairly left to the jury to decide as to the credibility of the witnesses, gave, at the request of the defendants, the charge to which the objection was raised. There was a sufficient basis for the hypothesis of the charge, if the defendants’ witnesses were to be believed, and we do not think that it was an instruction upon the weight of evidence.

The charge merely tells the jury, in effect, that a certain fact, if proved, would not of itself raise a conclusive presumption that the contract was as claimed by the plaintiff, or require a settlement upon the terms contended for by him; that they would be author*190ized to take into consideration certain other facts, if they were proved, as tending to rebut such presumption. He did not tell them what force or weight was to be given to any facts claimed to-have been proved by either party. Howerton v. Holt, 23 Tex., 51. He did tell them, in substance, that no conclusive inference must be drawn from a state of facts supposed to be in evidence; without taking into consideration other circumstances detailed, by the witnesses, provided they believed them to be true. Hurt v. Evans, 49 Tex., 318.

It was virtually a charge to look to the whole evidence, so far as . they gave credit to it, to determine the nature of the contract and the rights of the parties under it, and not to one particular circumstance alone which might lead them to a different conclusion. This did not withdraw any question of fact from the jury, nor place undue stress upon one portion of the evidence rather than another. Hamilton v. Brooks, 51 Tex., 146.

The charge is' not subject to the objections made to it, and, as no other complaint except the giving of this instruction to the jury is complained of, the judgment is affirmed.

Affirmed.

[Opinion delivered February 19, 1884.]