The following, in the form of a special issue, was submitted by the court to the jury:
"Question 1. The contract in controversy contains the following statement: `We are doing at the rate of $180,000.00 a year.' Was said statement true or false?"
And, further, the court instructed the jury:
"In connection with question No. 1 submitted to you, as to whether the statement in the contract in controversy that plaintiff was `doing at the rate of $180,000.00 per year' was true or false, I further charge you that said statement does not mean that plaintiff had done a $180,000 business for the preceding year; the question for you to determine is for what length of time less than a year the statement was intended to cover, and whether such statement, as intended and understood by the parties was true or false."
The appellants' complaint of the charge is based upon the contention that the court construed and submitted to the jury only a portion, and not the entire clause, of the particular statement or representation contained in the contract. It is thought error cannot be predicated upon the issue in the language and manner as submitted to the jury, for the court followed and was authorized by the pleadings of the parties so to do. The appellee pleads, in paragraph 2, that the parties entered into a contract on June 13, 1912, and attached a copy of the contract as Exhibit A to the petition, and asked that it be made a part of the petition. The exhibit contains the two separate representations or statements: "We are doing at the rate of $180,000.00" and "Our next twelve months' sales are to be $240,000.00." The first statement or representation is the one the court was submitting to the jury for finding as to its truth or falsity in fact. The answer of each appellant is:
"2. That the matters alleged by the plaintiff in the second paragraph of his petition, and numbered two therein, according to the information and belief of this defendant, are true, and the Exhibit A attached to said petition is a true and correct copy, except the words `Our last twelve months' sales were $180,000.00,' but this defendant avers that said contract, so pleaded, was void and illegal, for the reason that same was ultra vires and beyond the power of plaintiff to execute under its charter and the *Page 958 laws of the state of Texas, and plaintiff cannot recover thereon."
The legal effect of the answer therefore is to admit that the pleading of appellee states as a fact the true and correct representation or statement made and appearing in the contract, which was, "We are doing at the rate of $18,000.00 a year." The admission closed any controversy of fact as to the wording of the representation or statement made and intended in the contract. Article 1902 Vernon's Sayles' Stat. And, further pleading as a defense, as appellants did, that the appellee had knowingly misrepresented the amount of annual business done, the court was required to submit, as he did, to the jury for finding respecting the truth or falsity of the precise statement, pleaded and admitted as a fact to be correct, "We are doing at the rate of $180,000.00 a year." And the interpretation of the statement by the court is not erroneous. The words "at the rate of $180,000.00 a year" are not a declaration of the amount of actual sales annually made as a complete year, but mean that the amount of sales has been founded on an estimate of what the business may amount to in the current year.
The third assignment complains of the following special instruction, given at the request of appellee:
"If you find from the evidence that the clause in the contract reading, `We are doing at the rate of $180,000.00 a year,' was based upon the sales of the O. C. Frey Hardware Company for the 30 days previous to the date of said contract, and that this was understood and agreed to at the time by the plaintiff and E. H. L. Reed, salesman for the defendant, then you will say in answer to said question 1 that the said statement was true."
It was without dispute that the manager of the hardware company, making the contract and representation for the company, took and used the amount of the sales for the month next to the date of the contract as the basis of the estimation of what the business of the current year might be, and from these figures used the words in the representation, "We are doing at the rate of $180,000.00 a year." The sales for the month so taken as the basis for estimation were shown, without conflict, to be in an amount which, if continuing for the next 12 months to that amount, would more than reach the estimation of $180,000 at the end of the current year. The evidence is without dispute that the sales, and to the amount for the month so shown, were actual and true, and the figures thereof conclusively warranted the estimation of $180,000 for the year. No other method was used in making the estimation. Therefore there was no evidence making issuable the truth of the amount of business done at the time of the contract and upon which was based the estimation in the statement. The words in the statement, "We are doing" business, could reasonably be interpreted by appellant, in accepting the contract, as meaning and referring to the present amount of business done by the hardware company at the time of the contract. And in accepting the contract, the appellant would be held to have fairly understood from the language of the representation that the hardware company was estimating the sales of the current year by the method or standard of the amount of business being done at or immediately preceding the time of the contract. Consequently, the statement containing no specification of the manner nor of any special mode, besides the words "We are doing," in which the ascertainment of the amount of the business was made, the appellants were not mislead in respect to the estimation by the mode or basis of estimation used by the hardware company, and which was shown, without dispute, to be true. And the proof only showing, as it did, that the amount of business done at and immediately preceding the date of the contract was used as the basis of estimation, the estimation and method of estimation would be within the words of the representation or statement, and would not be a misrepresentation or false statement thereof. And an injury to appellant could not be predicated on the charge upon the contention, either that the sales agent did not in fact communicate to appellants, or have authority to adopt, the particular mode of ascertainment of the estimated sales for the current year. The language of the statement or representation sufficiently apprised and disclosed to appellants, at the time they received the contract for adoption or rejection, that it was only an estimation, at the time of the contract, of what the sales might amount to at the end of the year, based on the amount of business done at and immediately preceding the date of the contract.
It is concluded that the verdict is supported by the evidence, and that the contract, being in furtherance only of the usual business of the hardware company, is not beyond the legal right of the appellee to make.
The fourth and seventh assignments of error are overruled.
The fifth assignment of error complains of the refusal of the court to submit to the jury certain special questions. It is concluded that reversible error is not shown, and the assignment should be overruled, for the evidence does not tend to raise an issue that persons related to employés of the hardware company were permitted to become contestants, and the correspondence and letters of the manufacturing company, about which there was no contradiction in the evidence, showed indisputably that the hardware company did furnish the reports of gross sales and information called for by the manufacturing company.
We have carefully examined the other assignments, and think they should be overruled, as presenting no error.
*Page 959Judgment affirmed.