Appellant's twelfth assignment, set out in the majority opinion, and her twenty-seventh assignment of error, complaining that the court erred in overruling her motion for a new trial because of the jury's failure to answer the fourth, sixth and seventh questions submitted to them, present a question as to the disposition of which I have been unable to agree with the majority opinion. Article 1331, Sayles' Texas Civil Statutes, reads: "The special verdict must find the facts established by the evidence, and not the evidence by which they are established; and it shall be the duty of the court, when it submits a case to the jury upon special issues, to submit all the issues made by the pleading. But the failure to submit any issue shall not be deemed a ground for reversal of the judgment upon appeal or a writ of error, unless its submission has been requested in writing by the party complaining of the judgment. Upon appeal or writ of error an issue not submitted, and not requested by a party to the cause, shall be deemed as found by the court in such manner as to support the judgment; provided there be evidence to sustain such a finding." Prior to this Act, which was an Amendment in 1897, it was the rule that the special verdict must find all the material facts put in issue by the pleadings, and that the judgment could not be based *Page 448 in part upon the special verdict and in part upon the court's conclusions of fact. Paschal v. Acklin, 27 Tex. 191; Moore v. Moore, 67 Tex. 294; Texas Pac. Ry. Co. v. Watson, 13 Texas Civ. App. 557[13 Tex. Civ. App. 557]; Stephenson v. Chappell, 12 Texas Civ. App. 298[12 Tex. Civ. App. 298]. By the amendment it is still made the duty of the court, when it submits a case to the jury upon special issues, to submit all the issues made by the pleadings, and the court must, upon the answers to the issues thus submitted, unless the same be set aside and a new trial granted, render judgment for the party entitled thereto. Sayles' Texas Civil Statutes, art. 1333. It is further the rule of decision with us that the judgment can not ignore the finding of the jury even though the evidence be uncontradicted, and even though the finding be against the evidence and wholly unsupported by it. Ablowich v. Greenville National Bank, 95 Tex. 429; Waller v. Liles,96 Tex. 21. In the case first cited the Supreme Court says: "When a jury has been demanded by either party, he is entitled to have every material issue made by the pleading and the evidence submitted to the jury, and the trial court can not enter a judgment upon a verdict which fails to pass upon any material issue submitted to the jury, unless it be in case of a special verdict, which is provided for by statute. . . It is not a question whether the pleading sufficiently set out the instrument, nor a question as to whether the evidence was sufficient to justify a finding in favor of the lien, for these are beyond dispute, but under the well-settled rules of this court the trial court has no power to enter judgment upon facts well pleaded and indisputably proved, unless the issue presented and proved has been found by the verdict in favor of the party for whom judgment is rendered." In the case last above cited, which was one of special verdict, the rule thus announced was reaffirmed in the following language. "It is deducible, from the ruling in that case, that the findings of the jury upon the issues made by the pleadings in a case, although against the undisputed evidence or without evidence to support them, cannot be disregarded, but must constitute the only basis upon which any proper judgment can be rendered." The answer of the jury to the fourth interrogatory, saying "We do not know," is equivalent to a finding against the appellee, since the burden of proof upon this issue rested upon i (Ablowich v. Greenville National Bank, supra; Atchison, T. S. F. Ry. Co. v. Swarts, 48 Pac. Rep., 953; Kalina v. Union Pac. Ry. Co., 76 Pac. Rep., 438; Archibald v. Long, 43 N.E. Rep., 439; Boyer v. Robertson, 43 N.E. Rep., 879), or at least amounts to a mistrial.
The issue of the amount or value of the lumber furnished to appellant under her contract — certainly a most material one — was made in the pleadings, her special answer denying that she received the full amount, and was therefore, under the statute above quoted, one proper to be submitted to the jury. It was submitted and never withdrawn, and there was therefore no necessity for appellant's requesting the same to be submitted, and the jury's answer to the same, whatever the state of the evidence, unless set aside, would constitute the basis of the court's judgment. The interrogatory as framed, although it may have embodied an idea erroneously held by appellant that the value of the lumber furnished must have been reasonable, nevertheless fairly presented *Page 449 to the jury the issue of whether or not appellee had complied with its contract to furnish the appellant lumber and building material to the amount of nine hundred and fifty dollars. The trial court evidently so intended it, since the controversy as to the excess in the bill of lumber furnished, amounting to two hundred dollars, was specifically submitted in the sixth and seventh interrogatories, and he himself, in his sixth "Additional Findings of the Court," finds that appellant received from appellee, under her contract note and mortgage, building material of the value of nine hundred and fifty dollars, upon which the judgment for appellee was based. It can not be said that the evidence makes it absolutely sure that appellee delivered to the appellant the material contracted for, even if that would affect the question, since there is in the evidence a controversy as to a credit for lumber returned, as to which the finding of the court appears to be against appellant.
So that it is my opinion the language of the statutes quoted, and the spirit of the decisions cited, require that the judgment in this case should be reversed, and the cause remanded for another trial.