The writer is unable to concur in the opinion of the majority. The majority opinion simply adopts the construction of the pleadings in the former appeal. (Tex.Civ.App.) 287 S.W. 87. No effort is made to justify that construction, and apparently the sole justification for now adhering to it is the fact that the Supreme Court, in overruling all assignments in a writ of error prosecuted from that judgment, except two relating to entirely different questions, is to be presumed to have passed upon and adopted such construction. I do not think it is our duty to adhere to a construction of a pleading which is manifestly wrong upon the authority of a mere presumption that the Supreme Court has passed upon it and approved it.
I think this court erred in its opinion upon the former appeal in failing to distinguish between allegations of the terms of the contract and allegations of operations under the contract. Upon that appeal, it was contended by the appellant that the judgment should be reversed because plaintiff's petition was based upon an alleged employment of appellees by Huxford as subagents for appellant to buy peanuts in unlimited quantities on their own judgment, and that the evidence showed conclusively that Huxford had no such authority. In overruling that contention, this court for answer replied:
"The petition alleged specifically that the peanuts were bought from day to day under the immediate direction and control of Huxford. This allegation is a sufficient answer to the contention noted."
Manifestly it was not a sufficient answer, unless it was an allegation of one of the provisions of the contract. Certainly, if the contract was one of employment, authorizing the agents to buy peanuts in unlimited quantities on their own judgment, any question of the agent's authority to make such contract could not be affected by anything done under the contract short of a ratification or estoppel. The judgment was not rested upon ratification or estoppel, nor, indeed, could it have been under the evidence in the case. The alleged terms of the contract are correctly set out in the majority opinion. It will be noticed that it is not one of such provisions that the peanuts were to be "bought from day today under the immediate direction and control of Huxford." That allegation occurs in a recitation of what was done under the contract, and at a time subsequent to the making of same. Some of the provisions of the contract as alleged were that:
"Plaintiffs * * * would buy peanuts from the defendant on the openmarket during the peanut season of 1923 and 1924 * * * and that plaintiff would buy peanuts for no other party. It was agreed that plaintiffs would pay their own money for the peanuts which were to be purchased at the bestprice obtainable on the current market: from day to day." (Italics ours.)
In making proof of the contract containing such provisions, it would have been a material variance to offer evidence of another provision (not alleged) "that the plaintiffs all during the said peanut season" were to confer "from time to time with defendant's agent (Huxford)," and to act "under the direction of the defendant's agent in making the purchases and in storing and handling the peanuts." Such allegation was not only not made as a provision of the contract, but was not attempted to be proved as such, but merely of what was done under the contract. It is therefore clear to me that upon the former appeal this court sustained a recovery in behalf of appellants upon an entirely different contract in terms and legal effect than the one alleged in the petition. In order to bind appellee, it was necessary to show, not that Huxford had authority to buy the peanuts or to make some kind of contract, but that he had authority to make the particular contract alleged. The principle is so well established as often to be called axiomatic that in a suit upon a contract the identical contract alleged must be proved. Padgitt Bros. Co. v. Dorsey (Tex.Civ.App.) 194 S.W. 1124; Gammage v. Alexander, 14 Tex. 418; Bagley v. Brack (Tex.Civ.App.) 154 S.W. 247; Western Union Tel. Co. v. Smith, 88 Tex. 9, *Page 207 28 S.W. 931, 30 S.W. 549. The principle underlying this rule likewise requires that proof of authority of an agent to make a contract means the particular contract in question and not another.
Plainly the contract alleged is not one by which appellees agreed to sell peanuts to Bain Peanut Company. The contract alleged is one by which appellees were employed, not to sell peanuts to Bain Peanut Company, but to purchase peanuts from day to day on the open market for the best price obtainable, as its agents and representatives, and for which services, among other things, a specified compensation was to be paid them. In operating under the contract alleged, the ownership of the peanuts would pass immediately from the sellers in the open market, not to appellees, but to Bain Peanut Company. True, according to the allegations, appellees were to pay for the peanuts with their own money, but the allegations make clear that this was an advancement for Bain Peanut Company for which reimbursement was sought. What authority had Huxford to agree that Bain Peanut Company would pay appellees ten cents a bushel as a commission to purchase peanuts for it? If any such exists, it is implied by law from Huxford's status as agent with authority to purchase peanuts, for it cannot be gainsaid that there is not a word of testimony to show any express authority or any facts other than that of agency, and authority to purchase peanuts, from which such authority can be inferred. If he had implied authority to make such contract, he could just as well have bound his principal to pay a salary of, say, $100 a month. It certainly cannot be that any such authority exists by implication. What authority was Huxford shown to have had to bind Bain Peanut Company to reimburse appellees for such sums as they should advance to purchase peanuts? He had just as much authority to contract for a loan with the Proctor Bank for $10,000 with which to purchase peanuts and thereby obligate Bain Peanut Company to repay it, for in either case it must be implied by law from the fact of agency and authority to purchase peanuts alone, there being no other evidence of authority. Suppose the agent had contracted with the bank for the $10,000 loan and had wholly misapplied it. Could it be contended for a moment that the bank could recover the advances from Bain Peanut Company upon proof of no other authority on the part of Huxford than is shown by this record, which, as said before, consists solely of the fact he was agent, with authority (limited at that) to purchase peanuts. If Huxford had no authority to contract for the payment of the commissions, then, whatever other authority he had, he could not bind appellant by the particular contract alleged. As said in the majority opinion, the contract is one and indivisible. The authority requisite to make such contract must include authority to make every part of it.
Independently of everything else, the principle that one must recover, if at all, on the precise contract alleged, forbids a recovery in this case, because, while the pleading alleged that one provision of the contract was that appellant would pay appellees ten cents a bushel for all peanuts purchased under the alleged contract, appellees themselves testified that the contract was that ten cents per bushel was to be paid for peanuts that were stored and five cents a bushel for such as were loaded on cars directly from wagons. Appellees thus affirmatively disproved the existence of the contract alleged.
Much more might be said argumentatively to show that the contract alleged is not properly susceptible of any construction that would bring it within the authority of Huxford to make, as disclosed by undisputed evidence, but the above, it is thought, is sufficient to show the basis of my conclusion that the judgment of the trial court should be reversed and remanded.