The writer is of the opinion that there was no reversible error in refusing to submit requested special issue No. 1. The due transfer of the vendor's lien notes placed their legal title in appellant. This title would remain in appellant unimpaired, unless appellee proved, by a preponderance of the evidence, that the transfer rested on an oral agreement which made it a conditional transfer, subject to become absolute in the event a further investigation by appellant proved that Roy Mason had robbed the safe. The undisputed evidence shows that the investigation had ended, and that no such proof was in the hands of appellant. The ultimate fact to be determined at the trial of the case therefore was: Did the transfer rest on an oral agreement that made it a conditional one? The material evidence all revolved around this one issue — that of appellee, to the effect that such oral agreement was entered into; that of appellant, to the effect that no such oral agreement was entered into. If the jury did not believe that appellee had discharged the burden resting upon him by proving the oral agreement by a preponderance of the evidence, then appellee's case failed. It has never been held, so far as we can recall, that it was error for a court to refuse a requested instruction embodying a special issue which merely was an affirmative submission of the negative side of plaintiff's case. C., R. I. G. Ry. Co. v. De Bord (Tex.Civ.App.) 146 S.W. 667. This case was reversed by the Supreme Court, but not on this question. 109 Tex. 20,192 S.W. 767.
The case of S. A. U. G. R. Co. v. Dawson (Tex.Civ.App.)201 S.W. 247, is another case in point. Dawson recovered judgment against the railroad company for alleged negligent injuries. An issue of who was Dawson's master at the time of the injury was made both by the pleadings and by the evidence; the railway contending that Dawson was the employee of an independent contractor, and not in its employ, and Dawson contending that he was not in the employ of the contractor, but in that of the railway company. The case was submitted on special issues, this issue being submitted as follows: "Was plaintiff in the employ of the defendant when the injury occurred?" The railway company requested the submission of the following special issue: "Was appellee an employee of the contractor when the injury occurred?' "The court disposed of the matter in these words:
"The same issue could have been submitted in either the form given or in the form refused; but, being given in one form, it was not error to refuse to give it in the refused form"
The Supreme Court denied a writ of error in this case.
A case in court must necessarily take shape and form from the allegations in plaintiff's petition, and this is especially true if the defense amounts to only a denial of the existence of the facts that constitute plaintiff's alleged right of recovery. In the instant ease, appellee alleged that the transfer of the vendor's lien notes, though absolute on its face, rested on an oral agreement that made it a conditional transfer, and that the condition that would render the transfer absolute had failed. An analysis of appellant's answer to appellee's cause of action discloses that it amounts only to a denial of the oral agreement alleged. It is true that in many cases in court there are numerous evidentiary circumstances which are the subject of controversy in the evidence, and on certain of which circumstances the plaintiff relies to establish the ultimate facts of his case, and on certain other of such circumstances, the defendant relies to controvert such ultimate facts. These are not issues of facts to be submitted specifically for the determination of a jury, because, standing alone, they do not, on the one hand, establish appellee's case, nor, on the other hand, esstablish appellant's defense. One such evidentiary circumstance is embraced in the requested special issue, namely:
"In order that defendant might be reimbursed without reporting said loss to the surety *Page 340 company that had furnished the bond for Roy Mason."
This circumstance might be true, and still it would not defeat appellee's cause of action. It is a mere evidentiary matter, from which the jury might conclude that there was no oral agreement of a conditional transfer. We are therefore of the opinion that there was but one issue made by the pleading and the evidence, and that, as the appellee had the affirmative of this issue, it was not error for the court to submit same in the affirmative form given, and, as this submission brought the entire case before the jury for its consideration, and that, as the requested special issue submitted only the negative of the issue submitted by the court, there was no error in its refusal.
However, if mistaken in this, we are of the opinion that no harm could have resulted to appellant by the refusal of such requested submission. The court called the jury's attention to appellee's defense in his statement of the case, and, with their attention thus directed to both the affirmative and negative of the issue submitted, the jury was sent out to consider the verdict. Under the manner in which the issue was submitted, it cannot be presumed that the jury did not consider and weigh appellant's defensive testimony, and we therefore cannot assume that, if there had been submitted to them affirmatively the mere negative of the issue submitted by the court, they would have made a different answer. Lancaster et al. v. Campbell (Tex.Civ.App.) 218 S.W. 550.
In accordance with the view of the majority of this court, the case is reversed and remanded for a new trial not inconsistent with the views as expressed in such opinion.
Reversed and remanded.