The appellee did not intend by his plea of non est factum to question or deny the fact that the two notes for $9,000 each were indorsed by the payees, Allen & Record. The obvious purpose and effect of this plea is simply to put in issue the execution of the notes by John G. Logue, appellees’ intestate. Being properly verified by affidavit, it was amply sufficient for this purpose. (Tarpley v. Poage, 2 Tex., 146; Parr v. Johnson, 15 Tex., 297.)
Although appellant, both as bearer and indorser, has the legal title to said notes, and the suit upon them may, without doubt, therefore, he prosecuted in his name,if it be true, as is alleged in the answer, that he paid no consideration for them, and holds them as the property and in trust for the payees, Allen & Record, unquestionably appellee is entitled to make any defense to them which he could have sustained if the suit had been brought by Allen & Record in their own names. The exceptions, therefore, of appellant to the answer, alleging the trust and the tender of performance on the part of Logue of the contract, as security for which the notes were given, should have been annulled, and the action of the court in this particular furnishes no grounds for a reversal of the judgment. Whatever may be said of the policy or correctness of the rule, if it were an open question, it cannot now be doubted that in our courts a deed absolute upon its face may he shown by parol testimony to have been intented as a trust. (Mead v. Randolph, 8 Tex., 196; McClenney v. Floyd, 10 Tex., 159; Grooms v. Rust, 27 Tex., 231.) Such evidence, as has been repeatedly held, does not vary or contradict the deed or written contract, hut establishes an additional stipulation or agreement consistent with and superadded to that contained in the written instrument.
Ro reason has been presented us in support of the objec*290jection to the ruling of the court permitting one of appellee’s attorneys to be examined as a witness. "Whether the notes to which he referred are the same upon which this suit is brought was of course a question for the jury; and whether any weight should be attached to the declarations and admissions of Record, one of the payees of the notes, depends upon the fact whether appellee has succeeded in making a case authorizing his equities against the payees of the notes to be let in as a defense to the suit by appellant.
The jury were instructed by the court, that if they believed these notes were the property of the payees, Allen & Record, and not that of appellant, they should find a verdict for appellee. To this charge we think the assignment of error is well taken. By it the decision of the case is made to depend, if taken as an isolated fáct, upon an altogether immaterial question. The possession of the notes, either as bearer or indorser, by appellant, with the consent or in trust for Allen & Record, although they were in fact their property, was amply sufficient to authorize his recovery of the amount due upon them if there was no valid defense against the real owners. Unless appellee has such defense, there is not the slightest pretext shown in the record for his making the question in respect to appellant’s title to the notes, or the object and purpose for which they were passed to him by the payees. (Greneaux v. Wheeler, 6 Tex., 524; Story on Agen., § 227, note 1.)
If the charge of the court was merely defective in omitting to instruct the jury in respect to an important issue in the case, appellant, unless he had asked the proper instruction, would have no cause to complain. But the charge. given by the court to the jury in this case is not merely defective by reason of such omission; it is positively erroneous, and misled the jury, by directing them to return a verdict as they might determine an issue, which, standing alone, is altogether immaterial, and in no way affects the merits of the case. The judgment is reversed, and the cause
Remanded.