Floyd L. Fowler brought this suit against the United Fidelity Life Insurance Company for the recovery of commissions, bonuses, and renewal fees earned by the sale of life insurance for defendant under three written contracts; the first dated February 11, 1922, provided for the sale of- insurance in and around El Paso, Tex.; the second and third, dated respectively April 15,1924, and October 3, 1924, provided for the sale of insurance in the city of Dallas. The contract of April 15, 1924, -superseded that of February 11, 1922, and that of October 4, 1924, superseded both the former, except plaintiff was entitled to certain hang-over benefits from insurance sold under preceding contracts.
In addition to the cause of action above described, plaintiff alleged as basis for the recovery of damages, in substance, that after working the El Paso territory for more than two years and establishing a profitable agency, defendant, by persuasion, representations, and certain promises, induced him to move to Dallas, and enter into the contract of April 15, 1924; that thereafter defendant failed and refused to co-operate with him as promised, interfered with the development of the Dallas agency, then induced him to execute the contract dated October 4, 1924, with the view of ultimately getting rid of him, and did in fact finally discharge him, wherefore he sought recovery of damages, actual and exemplary.
Defendant answered by general denial,, es-toppel, and other special defenses, and asserted in a cross-action an indebtedness against the plaintiff.
On application of defendant, auditors were appointed to state the accounts between the parties, in due time their report was filed, to the effect that plaintiff was indebted to defendant in the sum of $3,877.75; which was duly excepted to by plaintiff and evidence heard thereon.
The case was tried to a jury, and all issues relating to plaintiff’s alleged cause of action for damages were found against him ; the jury also found against defendant on its cross-action, and on plaintiff’s claim for earnings and compensation under the three agency contracts, the court submitted special issues, which, together with the answers of the jury, are as follows:
“Special Issue No. 3: Was the defendant indebted to the plaintiff in any amount on *130April 15,1924? Answer Yes or No. Answer: Yes.
“If you have answered Special Issue No. 3 by ‘Yes,’ then answer the following subsection (a): (a) How much was such indebtedness? Answer: $3133.42.
“Special Issue No. 4: Was the defendant indebted to plaintiff in any amount on June 1, 1929? Answer Yes or No. Answer: Yes.
“If you have answered Special Issue No. 4 by ‘Yes,’ then answer the following subsection (a): (a) How much was said indebtedness? Answer: $1944.24.”
On these findings the court rendered judgment in favor of plaintiff for $5,077.66, being the aggregate ' of the two amounts found by the- jury, from which defendant appealed.
Among other propositions urged by defendant for reversal is that the court erred in submitting special issues Nos. 3 and 4, because in order to answer same the jury were required to construe the written contracts sued upon.
Defendant objected to the submission of these issues, on the ground, among others, that the jury were required to construe and pass upon the legal effect of the pertinent provisions of these contracts.
The three contracts are lengthy, covering over thirty-five pages of the transcript, and the court nowhere explained their pertinent provisions, nor was any statement given as to the rights of the parties thereunder. To answer what, if in any amount, defendant was indebted to plaintiff on either of the dates named in the special issues, the jurors were necessarily required to adopt their own interpretation of the contracts, and thus to answer questions mixed with law and fact. When written obligations are not ambiguous, they must be construed by the court and not by the jury. See Allen v. Koepsel, 77 Tex. 505, 507, 14 S. W. 151; Ivey v. Williams, 78 Tex. 685, 687, 15 S. W. 163; Gulf, etc., Co. v. Malone (Tex. Civ. App.) 25 S. W. 1077; Varnes v. Dean (Tex. Civ. App.) 228 S. W. 1017,1018; Alexander v. Tips (Tex. Civ. App.) 268 S. W. 965; Hewitt v. Buchanan (Tex. Civ. App.) 4 S.W.(2d) 169, 174; Culbertson.v. Ashland Cement & Construction Co., 144 Ky. 614, 139 S. W. 792.
In Varnes v. Dean, supra, the court used the following language in point: “No direction is given to the jury in the charge as to what the essentials of the written agreement alleged to have been made by plaintiff and his wife and witness Holmes were. Nor is any issue of fact, unmixed and separate from questions of law, submitted in this issue. * * * A charge of the court must submit questions of fact solely to the decision of the jury, but should not include questions of law, which the court only is authorized to determine.” We are of opinion that the contention of defendant in this respect presents material error, for which the judgment must be reversed.
Defendant makes the further contention that the court erred in submitting issue No. 3, because not authorized by either pleadings or evidence, and further that the finding of the jury to the effect that defendant was indebted to plaintiff in the sum of $3,133.42 on April 15, 1924, finds no support whatever in the evidence.
These contentions are so interrelated that they will be grouped and considered together. The contract dated April 15, 1924, the second contract between the parties, entered into on the removal of plaintiff from El Faso to Dallas, contains, among others, the following provisions:
“2. A new contract will be issued superseding temporarily your old contract, which new contract is attached.
“3. All settlements taken under this new. arrangement whether in notes or cash, will be turned over to the company to be held as collateral to the note thus created, and the $200 per month advance above referred to.
“4. Excess funds, if any, are to be used by the company in reducing your present or old indebtedness as rapidly as possible.
“5. The new contract which is taken, and of-which'this is a part, is to remain effective until all indebtedness to the company has been wiped out. At that time, unless paragraph 15 is accomplished your old contract will go into full force and effect. The old contract in the interim is to remain dormant, with the exception of renewals, Which will be paid so long as the qualifications required under the new contract are met. * ⅜ *
“8. This contract is to be in full force and effect for one year from date unless old accounts are wiped out prior to that time. ⅝ ⅜ *
“15. If all indebtednesses are wiped out within one year from today, old contract will be retroactive to include all business from this date.
“16. On notes that we know to be good we will discount 10'% and apply on balance due the company. This is at the. discretion of the Vice President & General Manager.”
While the amount of plaintiff’s indebtedness to defendant mentioned in these excerpts was not stated, yet the • conclusions are inescapable that plaintiff was then indebted to defendant in some amount, that the parties contracted with reference to that fact, and provided for its reduction or payment from plaintiff’s future earnings. In view of this admitted fact, but without an intimation as to the status of the accounts between the parties at any subsequent date, we are of opinion that plaintiff is estopped to deny that *131lie was indebted to defendant on April 15, 1924; therefore, the submission of the issue was not authorized, and the finding of the jury in response thereto is without evidence to sustain it.
The rule of estoppel by contract is announced in 21 C. J. 1111, § 111, as follows; “If, in making a contract, the parties agree upon or assume the existence of a particular fact as the basis of their negotiations, they are estopped to deny the fact so long as the contract stands, in the absence of fraud, accident, or mistake.” Also see 10 R. C. L. p. 799, § 111, and note to 3 L. R. A. 308.
We overrule appellant’s contentions that the court erred in refusing its charges Nos. 1 and 2, requesting directed verdicts in its favor on the issues of the main suit as well as on its cross bill; the other questions raised, being subsidiary to those decided, will not be discussed.
In the interest of certainty and brevity, we respectfully suggest to the trial court the propriety of ordering a repleader by both parties, as provided by rules Nos. 2 and 29 governing district and county courts.
For the errors hereinbefore indicated, the judgment of the trial court is reversed, and the cause remanded for further proceedings.
Reversed and remanded.