The written contract of sale provides for a conveyance by deed by Clark and Stone to A. L. Boynton of, besides other property, "1,000 acres of pine timber," which was, as the writing states, "situated about six miles south of Hallsville in Harrison county, Texas, on the land of Ben Waldron." The sole difference between the parties pertains to the "1,000 acres of pine timber." And in view of the pleading and evidence the conclusion to be reached, in order to determine the differences, was that of whether or not both the parties have made a valid oral agreement free from mistake pertaining to the pine timber, but a mistake in expressing its terms has been made in reducing it to writing. The question as submitted by the court seems to restrict the jury's inquiry to the understanding of A. L. Boynton only as to the terms of the agreement respecting pine timber. Whether, though, the question properly submitted the issue is immaterial for discussion here, since no objection thereto is made on this appeal. The limitation, however, placed on the question by the special charge given and excepted to and made the basis of assignment of error is, in the record, material error this court concludes. The special charge informs the jury that if McConico, "the agent of the defendant A. L. Boynton," "understood" the agreement to be that Clark and Stone were to make conveyance to A. L. Boynton of all the pine timber on the 1,000-acre tract of land of Ben Waldron, then A. L. Boynton would, as a matter of law, be held to have "understood" or agreed to that term of the contract. The legal doctrine involved in this special charge has application when the contract has been negotiated and a final agreement effected through an agent acting in behalf of his principal. Sykes v. Speer, 112 S.W. 422; Harrell v. Brooks, 52 Tex. Civ. App. 334,113 S.W. 961; Irvine v. Grady, 85 Tex. 120, 19 S.W. 1028. But the legal proposition involved in the special charge has no application, we firmly conclude, to the facts of this case. It is admittedly shown that the written instrument, purporting to be the prior oral agreement, was signed by A. L. Boynton in person, and not by Mr. McConico as agent for A. L. Boynton, And there is no evidence in the record, or pointed out in the briefs, that authorizes a finding of fact that Mr. Boynton never authorized or agreed that Mr. McConico should in behalf of A. L. Boynton buy the property, or negotiate for its purchase, or fix terms of purchase, or consummate a verbal or written agreement of any kind with Clark and Stone for the property or any part of it. Mr.
McConico, as proven, was engaged by A. L. Boynton to look over the property offered for sale by Clark and Stone, and to make investigation and report to Boynton the result and opinion of the investigation concerning the property. A. L. Boynton and Clark and Stone, each in person, conducted the negotiations and effected whatever agreement was made between them concerning the sale and purchase of all the property. At the time all the parties went to the law office to have the agreement reduced to writing a real firm "trade" or agreement had been made by Boynton and Clark and Stone, each in person; and this oral agreement, already entered into was the agreement, to be written up. The evidence eliminates any question of agency, and makes pertinent a decision only of whether or not the parties have made a valid oral agreement or contract free from mistake, but a mistake in expressing its terms has been made in reducing it to writing. Mr. McConico was merely, at most, rendering a gratuitous service or in legal effect merely in the attitude of testifying as a witness to an oral agreement when informing the attorney as to the terms of the agreement previously negotiated and finally agreed upon by the parties in person and without the intervention of any agent. And in any event, in the record, Mr. McConico's "understanding" of the terms of an oral contract, which was previous to its being reduced to writing, negotiated, and consummated entirely by the parties themselves, each in person, would not, as a matter of law, conclusively bind A. L. Boynton. The "understanding" of Mr. McConico of the contract is merely a matter of evidence to be considered by the jury along with all the evidence as would be the testimony given by any witness present at the trial and hearing the parties finally agree on the particular terms of an oral agreement.
The judgment is reversed, and the cause remanded for another trial.
On Rehearing.
Appellees insist that the special instruction, for the giving of which the judgment is reversed, was not error, "because the controversy is not about the terms of purchase, but concerns only the acreage of the timber," and "that there is ample evidence to make A. L. Boynton chargeable with his agent McConico's knowledge as to the acreage of timber." The defendant did plead misrepresentation and false representation of the amount of timber on the Waldron tract of 1,000 acres. But the question as submitted by the court, and as it was in the record treated by the parties, could not reasonably be construed as inquiring for the fact of whether or not there was misrepresentation of the amount of timber on the land, and consequently a material shortage of the amount thought to be purchased, as a plea in avoidance of the terms of the contract. The word "understand" in the question asked was used in the sense of "agree," and the effect of the question was to inquire for a fact, i. e., whether there was an agreement between A. L. Boynton and Clark and Stone that A. L. Boynton should have all the pine timber, be it little or much, then on the Waldron tract, or all the pine timber on as much as 1,000 acres out of the Waldron tract. The question was entirely directed to "a term" of the agreement, in order that the court could determine from the jury's answer whether or not both of the parties made a valid oral contract free from mistake pertaining to the pine timber, but a mutual mistake in expressing its terms had been made in reducing it to writing. If the jury had answered that Boynton orally agreed, as contended by appellees, to buy the pine timber, be it little or much, then standing on the 1,000 acres of the Waldron tract, then the court would have construed the written contract as if it were so intended by the written contract in evidence. But if the jury had answered that Boynton made the oral agreement with Clark and Stone, as contended by appellant, to purchase "1,000 acres of pine timber" out of the Waldron tract, then the court would have construed the written contract as being without mutual mistake made in reducing it to writing.
All the evidence agrees that McConico's agency up to the time he went to the attorney's office was that only of an investigator of the property and to make report thereon to his employer. He had no authority to negotiate terms of contract or act in behalf of the appellant in that respect. The evidence is without dispute that the parties themselves finally made and entered into the oral contract at the Mobberly Hotel, and that no part of it was made by the intervention of an agent. McConico was authorized, according to the evidence, "to outline the contract," already theretofore agreed upon by the parties, to an attorney, for the purpose of enabling him to reduce it to writing. The parties went to the attorney's office "to have the contract drawn up," not to make a contract. McConico only outlined the contract, and "gave the attorney an outline of the contract," in order that be might reduce it to writing.
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The written contract of sale provides for a conveyance by deed by Clark and Stone to A. L. Boynton of, besides other property, "1,000 acres of pine timber," which was, as the writing states, "situated about six miles south of Hallsville in Harrison county, Texas, on the land of Ben Waldron." The sole difference between the parties pertains to the "1,000 acres of pine timber." And in view of the pleading and evidence the conclusion to be reached, in order to determine the differences, was that of whether or not both the parties have made a valid oral agreement free from mistake pertaining to the pine timber, but a mistake in expressing its terms has been made in reducing it to writing. The question as submitted by the court seems to restrict the jury's inquiry to the understanding of A. L. Boynton only as to the terms of the agreement respecting pine timber. Whether, though, the question properly submitted the issue is immaterial for discussion here, since no objection thereto is made on this appeal. The limitation, however, placed on the question by the special charge given and excepted to and made the basis of assignment of error is, in the record, material error this court concludes. The special charge informs the jury that if McConico, "the agent of the defendant A. L. Boynton," "understood" the agreement to be that Clark and Stone were to make conveyance to A. L. Boynton of all the pine timber on the 1,000-acre tract of land of Ben Waldron, then A. L. Boynton would, as a matter of law, be held to have "understood" or agreed to that term of the contract. The legal doctrine involved in this special charge has application when the contract has been negotiated and a final agreement effected through an agent acting in behalf of his principal. Sykes v. Speer, 112 S.W. 422; Harrell v. Brooks, 52 Tex. Civ. App. 334,113 S.W. 961; Irvine v. Grady, 85 Tex. 120, 19 S.W. 1028. But the legal proposition involved in the special charge has no application, we firmly conclude, to the facts of this case. It is admittedly shown that the written instrument, purporting to be the prior oral agreement, was signed by A. L. Boynton in person, and not by Mr. McConico as agent for A. L. Boynton, And there is no evidence in the record, or pointed out in the briefs, that authorizes a finding of fact that Mr. Boynton never authorized or agreed that Mr. McConico should in behalf of A. L. Boynton buy the property, or negotiate for its purchase, or fix terms of purchase, or consummate a verbal or written agreement of any kind with Clark and Stone for the property or any part of it. Mr.
McConico, as proven, was engaged by A. L. Boynton to look over the property offered for sale by Clark and Stone, and to make investigation and report to Boynton the result and opinion of the investigation concerning the property. A. L. Boynton and Clark and Stone, each in person, conducted the negotiations and effected whatever agreement was made between them concerning the sale and purchase of all the property. At the time all the parties went to the law office to have the agreement reduced to writing a real firm "trade" or agreement had been made by Boynton and Clark and Stone, each in person; and this oral agreement, already entered into was the agreement, to be written up. The evidence eliminates any question of agency, and makes pertinent a decision only of whether or not the parties have made a valid oral agreement or contract free from mistake, but a mistake in expressing its terms has been made in reducing it to writing. Mr. McConico was merely, at most, rendering a gratuitous service or in legal effect merely in the attitude of testifying as a witness to an oral agreement when informing the attorney as to the terms of the agreement previously negotiated and finally agreed upon by the parties in person and without the intervention of any agent. And in any event, in the record, Mr. McConico's "understanding" of the terms of an oral contract, which was previous to its being reduced to writing, negotiated, and consummated entirely by the parties themselves, each in person, would not, as a matter of law, conclusively bind A. L. Boynton. The "understanding" of Mr. McConico of the contract is merely a matter of evidence to be considered by the jury along with all the evidence as would be the testimony given by any witness present at the trial and hearing the parties finally agree on the particular terms of an oral agreement.
The judgment is reversed, and the cause remanded for another trial.
On Rehearing.
Appellees insist that the special instruction, for the giving of which the judgment is reversed, was not error, "because the controversy is not about the terms of purchase, but concerns only the acreage of the timber," and "that there is ample evidence to make A. L. Boynton chargeable with his agent McConico's knowledge as to the acreage of timber." The defendant did plead misrepresentation and false representation of the amount of timber on the Waldron tract of 1,000 acres. But the question as submitted by the court, and as it was in the record treated by the parties, could not reasonably be construed as inquiring for the fact of whether or not there was misrepresentation of the amount of timber on the land, and consequently a material shortage of the amount thought to be purchased, as a plea in avoidance of the terms of the contract. The word "understand" in the question asked was used in the sense of "agree," and the effect of the question was to inquire for a fact, i. e., whether there was an agreement between A. L. Boynton and Clark and Stone that A. L. Boynton should have all the pine timber, be it little or much, then on the Waldron tract, or all the pine timber on as much as 1,000 acres out of the Waldron tract. The question was entirely directed to "a term" of the agreement, in order that the court could determine from the jury's answer whether or not both of the parties made a valid oral contract free from mistake pertaining to the pine timber, but a mutual mistake in expressing its terms had been made in reducing it to writing. If the jury had answered that Boynton orally agreed, as contended by appellees, to buy the pine timber, be it little or much, then standing on the 1,000 acres of the Waldron tract, then the court would have construed the written contract as if it were so intended by the written contract in evidence. But if the jury had answered that Boynton made the oral agreement with Clark and Stone, as contended by appellant, to purchase "1,000 acres of pine timber" out of the Waldron tract, then the court would have construed the written contract as being without mutual mistake made in reducing it to writing.
All the evidence agrees that McConico's agency up to the time he went to the attorney's office was that only of an investigator of the property and to make report thereon to his employer. He had no authority to negotiate terms of contract or act in behalf of the appellant in that respect. The evidence is without dispute that the parties themselves finally made and entered into the oral contract at the Mobberly Hotel, and that no part of it was made by the intervention of an agent. McConico was authorized, according to the evidence, "to outline the contract," already theretofore agreed upon by the parties, to an attorney, for the purpose of enabling him to reduce it to writing. The parties went to the attorney's office "to have the contract drawn up," not to make a contract. McConico only outlined the contract, and "gave the attorney an outline of the contract," in order that be might reduce it to writing. If McConico made a mistake in "outlining the contract" to the attorney as to the clause in question, then probably such a mistake would be imputed to appellant and a reformation would obtain. But if McConico correctly "outlined" the true agreement of both the parties as to the clause in question, then he made no mistake. And the question is not that of whether or not the attorney made a mistake in writing the words in question, for it does not appear in all the evidence that the attorney did himself make any mistake. There is a difference between the
parties themselves as to the true term of agreement about the purchase of "the pine timber," and if a mistake was made as to the agreement, the parties made it.
The special charge, we think, was error, because what McConico "understood" about the true terms of the original contract would not be imputable as a matter of law to Boynton. For McConico had no authority in the evidence to contract or make contracts or to act in behalf of appellant in making a contract; McConico's agency being to the extent only of a timber investigator.
It is concluded by the court that the motion for rehearing should be overruled.