Having declined to grant leave to file the petition for a mandamus in this case, the relators have filed this motion for a rehearing.
The motion for a rehearing takes a broader scope than the original petition and pointedly states facts which did not appear either from the allegations of the latter or in the exhibits attached thereto. Those facts are that the letter, which, as alleged in the written statement of the cause of action in the justice court, was sent by appellee to relator Shirley was not produced upon the trial, nor was it proved that any such letter had in fact been written. It may be true that a careful inspection of the allegations in the petition for the writ of mandamus may suggest the inference that the appellee failed to prove that that letter was ever sent; but we confess that upon an examination of the petition such suggestion did not present itself to our minds. Neither does the opinion of the Court of Civil Appeals state that the letter was not proved. Indeed we were somewhat at a loss to know why that court should have entered upon the discussion of the propriety of looking to the parol or other extrinsic evidence in determining the matter as to the place of performance. The petition should have stated clearly the facts which were established by the evidence upon this issue. It is too late to do so in the motion for a rehearing. *Page 66
When we declined to permit the petition to be filed, the relators were at liberty to present a new petition alleging any material fact or facts which may have been omitted or insufficiently pleaded in the first. But in order to properly present the case as it is presented in the motion for a rehearing, they should distinctly allege that neither the letter from the plaintiff company to the relator nor its contents were proved upon the trial. They should also present a copy of the evidence upon the trial from the transcript on file in the Court of Civil Appeals and should state that it is all the evidence upon the issue.
In this connection we note that the petition for the writ is not verified by affiant. When we made the rule of practice for the procedure in mandamus cases brought in this court we did not expressly say that the petition should be sworn to or supported by affidavits, for the reason that such is the rule of the common law. Brown v. Ruse, 69 Tex. 589. It is our practice to require that the petition should be verified, and it should have been sworn to in this case. We did not discover that the affidavit was wanting when we acted upon the motion to file. Had we known of the omission we would have had counsel advised of the fact, and upon their failure to supply the defect would have overruled the motion on that ground.
Since the petition for the mandamus does not make it clearly appear that the letter from the oil company to Shirley was not proved upon the trial, we are not called upon to decide and should not decide whether there is a conflict between the decision of the Court of Civil Appeals in this case and the decision in the case of Borden v. Le Tulle Mercantile Co., 74 S.W. Rep., 788. Yet we venture the suggestion, that, even if the letter was not proved, there is such a difference between the facts of this case and the Borden case as to make them readily distinguishable. In the latter there was no writing except the order of the appellants' agent for the goods the price of which was sued for. In this case we have Shirley's written acceptance of a proposition for the purchase of two car loads of cotton seed — none of the terms of the proposition being known except the price. Conceding, then, that the letter was not proved and that the trial court and Court of Civil Appeals concluded that it appeared from the oral and circumstantial evidence actually adduced, that the offer was that the seed should be delivered at Gainesville, can it be said that the question as to the propriety of considering parol and extrinsic evidence in such a case is the same as the question which was presented in the case of Borden v. Mercantile Company?
Accompanying this motion for a rehearing, we find among the papers filed what we take to be the original statement of facts filed in the County Court after the trial of the cause. The original papers in a case have no place in the appellate courts and should not be sent up except upon the order of the trial court, and then only in special instances. *Page 67 The statement of facts is a file paper of the office of the clerk of the County Court, to whose custody it should be returned.
The motion is overruled.
Leave to file petition refused.
Opinion delivered June 9, 1904.