(dissenting).
I regret that I cannot concur in the majority opinion, or in affirmance of the judgment. I will undertake to briefly state the reasons for my dissent.
The cause was submitted to a jury on one special issue, to-wit: “Do you find from a preponderance of the evidence that E. L. Blanchard in the McAllen hospital during the month of December, 1934, in substance and effect promised and agreed to and with the plaintiff Rodriguez that during such time as Rodriguez should be unable to return to active employment as salesman for Higginbotham-Bailey-Logan Company the said company would pay or credit to the said Rodriguez commissions on goods shipped by said company to customers in the territory served by said Rodriguez as salesman prior to his injury on the same basis on which commissions had been paid or credited to said Rodriguez on sales theretofore made in said territory prior to his injury ?”
The jury answered the question, “Yes.” No other issues were requested. In connection with the jury finding it was stipulated by the parties that if said agreement was binding upon defendant then plaintiff was entitled to recover an aggregate sum of $2,941.52.
*997Upon defendant’s motion the court rendered judgment non obstante veredicto, denying any recovery to plaintiff, Rodriguez.
Defendant moved for a directed verdict in its favor at the close of plaintiff’s evidence, and again at the close of defendant’s evidence, but the trial judge overruled both motions, and submitted the case on the quoted special issue, thereby holding throughout the trial and until after verdict, that the case was one for the jury.
Defendant’s motion for judgment non ob-stante veredicto was based upon the grounds that “a directed verdict in favor of this defendant was the only proper verdict that should have been rendered and the court erred in refusing to direct such verdict when timely requested to direct such verdict at the close of the evidence by the plaintiff and again at the end of the evidence of both parties,” and for the further “reason that the answer of the jury to such issue has no support in the evidence; and for the further reason that the answer of the jury to the question submitted to it by the court can have no legal effect on the proper determination of the lawsuit and should not have been submitted.”
Plaintiff filed a full motion for new trial, properly challenging, the rulings of the court upon defendant’s motion for judgment non obstante veredicto, and attacking the resulting judgment.
Defendant challenges plaintiff’s right in this court to complain of the judgment, upon the ground that plaintiff did not elicit or request a jury finding that the agent, Blanchard, had authority to bind defendant upon the contract established by the sole jury finding. In support of this contention defendant propounds the proposition that the issue of authority was “an essential issue to be found in favor of plaintiff, before any recovery could be had” by him, and that in the absence of a jury finding thereon in this jury case the trial judge was “without power to find such issue in appellant’s favor,” and, therefore, that the court properly rendered judgment for defendant. In my opinion there is no merit in these contentions.
The only authority given a trial judge to render judgment non obstante veredicto is that provided by statute, and it must be exercised in strict observance of that provision, since it is in derogation of the constitutional right of trial by jury. The language of the statute is that “the Court may render judgment non obstante veredicto if a directed verdict would have been proper.” (Italics mine.) Art. 2211, R.S.1925, as amended by the Act of 1931, 42d Leg. p. 119, Ch. 77, sec. 1, Vernon’s Ann.Civ.St. art. 2211.
A trial judge may direct a verdict in a jury case only “whenever there is no evidence to support a material issue, whenever the jury can come to no other correct conclusion, whenever the evidence is all on one side and sufficient to support such verdict, or whenever theré is only a pure question of law.” 41 Tex.Jur. p. 935, sec. 166. I have carefully examined the record and have reached the conclusion that it does not bring this case within either of the classes in which a directed verdict is proper.
Plaintiff pleaded a lawful contract, made by an agent clothed with actual or apparent or implied authority to bind defendant, while acting within the scope of his employment. He pleaded that, whether the agent was authorized or not, defendant had ratified his acts in making the contract, and, having materially profited by plaintiff’s performance thereunder, waived its right and was estopped to deny its binding effect. It cannot be contended that plaintiff did not adduce material evidence to support his pleadings in the matters mentioned.
The question recurs, then, to the propriety of the judgment rendered in the face of and notwithstanding the verdict. The alleged contract constituted the very foundation of plaintiff’s cause of action, and the question of whether the contract was actually made constituted the ultimate issue of the case, in connection with the amount of damages, which was stipulated by the parties. The jury found, upon sufficient evidence, that the contract was made by the -admitted general sales manager or agent of defendant, and this finding with the stipulation for damages, made a case for plaintiff, and prohibited judgment for defendant. The remaining issues, of the authority of the agent, ratification, waiver, estoppel and the like, were subsidiary to the basic issue, and while the trial jttdge had authority to find upon those issues so as to support a judgment in favor of plaintiff based upon the jury finding and stipulation (Wichita Falls & O. Ry. v. Pepper, 134 Tex. 360, 135 S.W.2d 79), surely he was without authority to find, and it will not be presumed that he did find, upon those subsidiary issues so as to authorize a judgment for defendant based upon no jury finding *998in its behalf upon the basic issue, and in the face of and notwithstanding an affirmative finding thereon in favor of the plaintiff, u,pon conflicting evidence. Williams v. Ins. Ass’n., Tex.Civ.App., 135 S.W.2d 262.
On the other hand, defendant pleaded the defense of accord and satisfaction. The evidence was conflicting upon that issue, however, and therefore the trial judge had no authority to find, and we cannot presume that he did find, upon that basic issue so as to support the judgment for defendant under the evidence. It was the plain duty of the trial judge to submit that issue to the jury, but when he failed to perform that duty and submit the issue the burden shifted to defendant to request its submission. Defendant made no such request, however, and thereby waived his defense. Wichita Falls & O. Ry. v. Pepper, 134 Tex. 360, 135 S.W.2d 79.
Defendant also contends, in urging af-firmance, that the contract established by the'jury finding lacked mutuality and was without consideration, but we cannot say that these contentions are established by the record, as a matter of law. We can say, only, that the court erred in nullifying the finding of the jury, upon sufficient evidence, that the contract sued on was entered into by and between plaintiff and defendant’s general sales agent, and in rendering judgment for defendant upon all other issues in the face of conflicting evidence.
Summarizing, the case presented is this: Plaintiff’s cause of action was founded upon the allegation that defendant corporation employed plaintiff and agreed to pay him certain compensation for his services, and that under that agreement plaintiff earned and was entitled to recover certain sums. That was plaintiff’s case. Of course, there were subsidiary questions, such as the authority of defendant’s admitted agent to make the contract for defendant; ratification, waiver and estoppel. But the foundation of the case was the alleged (1) contract of employment and (2) the amount earned by plaintiff thereunder.
Now the jury found that (1) the contract was in fact made by defendant, through its general sales agent, and the parties stipulated (2) the amount earned by plaintiff under that agreement, if valid. Undoubtedly these two essential, and sufficient, facts entitled plaintiff to judgment for the amount stipulated (absent other inconsistent jury findings), and my position is that although the trial judge had the power to find upon the subsidiary issues so as to support judgment in conformity to the jury findings upon the basic issues, he was without authority to nullify those findings upon the basic issues and in direct contravention thereof render judgment for defendant upon his findings against plaintiff on the purely subsidiary issues, which were not submitted to the jury.
Assume, for the purpose of illustration, that the jury had found, specifically, in favor of plaintiff upon all the issues in the case except, for example, upon waiver, which was not submitted or requested, and the trial judge, concluding that the weight of the evidence was against plaintiff upon that remote subsidiary issue, had assumed to resolve it against plaintiff, and render judgment against him, notwithstanding the-jury verdict in his favor on the principal issue.
I do not think a trial judge is clothed with power to thus thwart the right of the citizen to a jury trial. The hypothesis is extreme, but it is different only in degree from the case made here, where the jury finding in favor of plaintiff upon the principal ground of recovery, and the stipulation of the amount of plaintiff’s damages, made a prima facie case entitling plaintiff to judgment. If in his discretion the trial judge could not render judgment for plaintiff in conformity to the verdict and stipulation, it was his duty to order a mistrial. I think the judgment should be reversed and the cause remanded.