(dissenting).
Being unable to concur with the majority opinion, I respectfully dissent therefrom.
In my opinion, the evidence in this cause, viewed most favorably from plaintiff’s standpoint, and if admissible in its entirety, establishes that plaintiff had a verbal contract with defendant binding the latter to pay plaintiff a commission of ten per cent on the amount received by it if plaintiff were the procuring cause of the sale of the gravel on its Camp farm; that subsequently, and because of plaintiff’s efforts, Gifford-Hill executed with defendant the gravel lease dated May 27, 1935, and described in the court’s opinion. In this lease it was provided that lessee could, on sixty days’ written notice to lessor, cancel all of its obligations thereunder. In the fall of 1938, Gifford-Hill exercised this contractual right and terminated its obligation to defendant. Since no issue *544of fraud or collusion was submitted to the jury, plaintiff’s pleaded contention of fraud in the cancellation of the gravel lease and the subsequent sale of the land must be deemed to have been waived. The cancellation of the gravel lease by Gifford-Hill, and the subsequent sale of the land by defendant to Gifford-Hill, must each therefore be accepted by us as having been done in good faith.
There was, I think, neither pleading nor proof that it was ever contemplated by plaintiff and defendant at the time the gravel lease was being negotiated that it might eventually ripen into a sale by lessor to lessee of the land therein described, and that in such event plaintiff would receive a commission on the sale price; nor was there pleading or proof that it was within the contemplation of defendant and Gif-ford-Hill, prior to or at the time of the execution of the gravel lease, that the lease might later be expanded into a sale of the land. No option to purchase the land was given Gifford-Hill by the terms of the lease agreement.
It therefore follows, in my opinion, that the subject matter of the verbal contract entered into by plaintiff and defendant was finally and fully concluded when plaintiff brought defendant and Gifford-Hill together and the gravel lease resulted. The execution of the lease fixed and determined the right of plaintiff, under the pleaded contract, to receive, as well as the defendant’s obligation to pay, a commission of 10 per cent of the amount collected by defendant under the contract. When this contract was legally terminated by Gifford-Hill by the exercise of its right to cancel, the legal liability of defendant to pay plaintiff a commission of 10 per cent of the amount received thereunder was likewise terminated and their verbal contract was fully concluded.
Plaintiff does not contend that he did anything after the gravel lease was executed to induce Gifford-I-Iill to buy the land in question. As I understand plaintiff’s claim, it is that he brought defendant and Gifford-Hill together, that the gravel lease resulted, and thereafter, and because of plaintiff’s original efforts in bringing the parties together, the sale of the land resulted. When the gravel lease was terminated by Gifford-Hill,. I do not believe that the record before me reveals in the pleadings or the evidence that any such continuing contractual relationship existed between plaintiff and defendant; nor do I believe that the cancellation of the gravel lease, more than three years after its date, re-vitalized the original verbal contract between plaintiff and defendant which was concluded and consummated upon the execution of the gravel lease.
The majority opinion has clearly, correctly and concisely stated and discussed th.e rules of evidence in respect to the admissibility of parol evidence tending to explain, modify or vary the terms of a written contract; but I have grave doubt that the court correctly applied these rules to the facts of this case.
Plaintiff testified that prior to the execution of the gravel lease in question, he had an oral agreement with defendant’s agent that he was to receive for his services 15% from any money that was derived from the sale of sand and gravel from the Camp farm; that before the gravel lease was executed he verbally agreed, at the agent’s request, to reduce the compensation to 10%; that after this, and because the lease was of long duration, and to prevent any misunderstanding of what he was to receive, he asked the defendant’s agent to verify their agreement by letter and this the agent promised to do; that after waiting for some time he called or wired the agent and received a letter from him verifying that plaintiff was entitled to receive a 10% commission. The following letters were introduced in evidence:
“Hearne, Texas 1-11-35
Mr. Neil Thomason,
204 Const. Bldg.,
Dallas, Texas.
Dear Mr. Thompson—
Confirming' our conversation concerning gravel lease near Hearne.
The Gifford-Hill people should be in to see you in the very near future for a testing optional contract. I believe 30 days should give them ample time to make proper investigation and if contract accepted, 60 days to begin operations or start paying guarantee monthly payments.
After making some investigations it might be their desire to impose on contract by paying minimum guarantee and probably not work your property for some time. And in which event my agreement with you on the one cent overriding royalty would leave me out, unless they actually removed material. In above event I, be-*545Heve you will agree that I would be entitled to a per cent equal to royalty basis in event they exercised their minimum guarantee. Which if you received 7‡ per cubic yard would be 1/7 or if 10{⅞ can be secured would be 1/10.
If you are not able to deal with the Gif-ford-Hill people soon please .advise and I will direct some one else. However would suggest the Gifford people your best bet. If in any way you might need my assistance in Dallas please advise.
Yours very truly
(Signed) Lyman W. Perkins
P. S. Please advise your opinion on ‘minimum guarantee percent basis’ as outlined in letter.
L. W. P.”
“Hearne, Texas, April 18, 1935
Mr. Neil Thomason,
Construction Bldg.,
Dallas, Texas.
Dear Mr. Thomason—
Enclosing three Sand & Gravel leases. Please note the paragraphs marked with blue pencil which have proven to be very useful to the lessor. However in some instances the amounts should be changed. I believe if you familiarize yourself with all three agreements that you will have in mind most everything that you will be confronted with.
Would appreciate when you finished with enclosed papers to please return for my file.
Hoping this may be of some benefit, and if anything else that I may assist you will be very glad to do so.
Yours very truly,
(Signed) Lyman W. Perkins.”
“May 6, 1935
National Life Ins. Co.
Dallas, Texas.
Re: Camp #1298
Gentlemen:
In case the gravel deal with either Gif-ford-Hill or S & G Company goes through I agree to accept 10% commission for any help I am able to give in connection with making the deal or in handling the property after the lease is let.
The commission to be paid as the funds are received by the National Life Insurance Company from the lease contract.
Very truly yours,
(Signed) Lyman W. Perkins.”
Dallas, Texas,
Oct. 11, 1935.
Mr. Lyman Perkins,
Hearne, Texas.
Re: Camp #1298
Dear Sir:
Replying to your recent inquiry, wish to advise that our understanding with reference to your commission in connection with the recent gravel contract we have let on the Camp farm reads as follows :
We are to pay you 10% commission. The commission to be paid as the funds are received by the National Life Insurance Company from the gravel contract. You are also to render any help we call on you for in connection with the making of the deal or handling the property after the lease is let.
Very truly yours,
(Signed) Neil Thomason,
Manager.”
This court has held that the letter dated October 11, 1935, and above set out, from Thomason to plaintiff, is sufficiently ambiguous to render parol evidence in explanation thereof admissible. In this I think the court is in error.
Plaintiff’s plea of fraud was waived because not submitted; there was no plea of accident, mistake or ambiguity. Plaintiff, although a witness, was not asked to explain, and in my opinion, gave no testimony tending to explain the meaning of the term “handling the property after the lease is let.” Plaintiff’s counsel did, however, bring out from Thomason that part of plaintiff’s duties in respect to this gravel lease with Gifford-Hill was that, in event said company began operating under the lease, Perkins was to keep a check on the gravel. Perkins did not deny this; nor did he testify that he rendered any character of assistance in respect to the property after the lease was let.
Perkins himself, by his letter of May 6th, put the contract under consideration in its written form and it will be construed most strongly against him. If there is an ambiguity in the contract, it arises from the words employed by Perkins in reducing the contract to writing, and he should not be allowed to profit by reason of an ambiguity for which he is responsible. 17 C.J.S. Contracts, page 751, §§ 323, 324; 10 Tex.Jur. 277, sec. 162.
*546I am of the opinion that when the letter dated' October 11th is read in connection with the letter dated May 6, 1935, there can be no doubt of the meaning of the expression “gravel deal,” “help in making the deal,” and “handling the property after the lease is let,” held by this court to create the ambiguity in the letter from Thomason to plaintiff under date October 11, 1935. If any doubt remained as to the meaning of the expressions above quoted, after reading in connection with each other the letters dated May 5th and October 11th, 1935, such doubt would be dispelled, I think, by referring to plaintiff's letter to Thomason dated January 11, 1935, the opening sentence of which is: “Confirming our conversation concerning gravel lease near Hearne”; and to the letter from plaintiff to Thomason under date April 18, 1935, enclosing sand and gravel leases.
Each of the above-quoted letters from plaintiff to Thomason shows, without any uncertainty, that plaintiff had in mind a gravel lease, and not a sale of the property, and that he and Thomason were both referring to the Gifford-Hill gravel lease in the letters respecting plaintiff’s commission. This being so, their prior oral understandings were merged into the written contract constituted by their letters, and the parol evidence varying and enlarging the terms thereof was erroneously admitted.
The facts of this case, in my opinion, bring it within the rule established by the settled law of this State that “in the case of a valid contract, all prior negotiations that the parties may have had, previous to the execution of the contract, must be considered as either waived or as merged into the written contract. By a valid and enforceable contract is meant such a contract that is neither void on its face, nor voidable because of fraud inducing its execution. In a suit to enforce such a contract, neither party can go behind its terms, to ingraft on it other terms not specifically, or by clear implication, contained therein; for there is a rule of law, as old as our- jurisprudence, that extrinsic evidence cannot be received to vary the terms of a valid contract.” Distributors Inv. Co. v. Patton, 130 Tex. 449, 110 S.W.2d 47, 48; Remington-Rand, Inc., v. Sugarland Industries, 137 Tex. 409, 153 S.W.2d 477; Avery Co. of Texas v. Harrison Co., Tex.Com.App., 267 S.W. 254.
I am further, of the opinion that when Gifford-Hill terminated the gravel lease by exercising the right to terminate expressly retained therein, and thereafter, or simultaneously therewith, entered into a contract with defendant to buy the land described in the gravel contract, this did not, as held in the majority opinion, constitute a merger of the lease contract with the contract of sale. When the lease contract was terminated there was nothing left to merge — the lease, and all rights thereunder, was at an end. Gifford-Hill had the right to terminate the lease, and it likewise had the right, with defendant’s acquiescence, to purchase the land originally covered by the lease. In the absence of fraud, I fail to see how the exercise of these two rights, the striking down of the lease with one hand, the purchase of the land with the other, could be held to be a merger of the lease so stricken with the contract of sale which came into being after or contemporaneously with the termination of the lease.
Because of the views above expressed, I am of the opinion that the motion for rehearing should be granted and that this cause should be reversed and rendered.