On Motion for Rehearing.
We reversed and remanded this cause on •two grounds, viz.: (1) Because the court erred in failing to explain, for the guidance of the jury,' the legal meaning of and the rights-of the parties under the three contracts sued upon; and (2) because neither pleading nor evidence authorized the submission of special issue No. 3, and the finding of the jury, to the effect that on April 15, 1924, appellant was indebted to appellee in the sum of $3,133.42.
Appellee, in motion for rehearing, insists that appellant waived the failure of the trial court to construe the contracts, and that this court erred in reversing the cause on that ground, because appellant made no request for such instruction.
Construction of the written contracts was a question of law for the court, and not of fact for the jury; hence the court should have given all necessary explanations to enable the jury to properly pass upon the facts involved in the issues presented, and its failure so to do was, in our opinion, error. Article 2189, R. S. 1925. While it is true appellant failed to request a special charge designed to cure this defect in the court’s charge, yet a timely objection pointed out the defect, which, in our opinion, was sufficient basis for reversal, whether the defect was an affirmative error, or a mere omission. Robertson v. Holden (Tex. Com. App.) 1 S. W.(2d) 570.
Appellee assails our holding to the effect that under the admitted facts appellee was estopped to deny that he was indebted to appellant on April 15, 1924, and therefore that the submission of issue No. 3 was unauthorized and the finding of the jury in response thereto was not sustained by evidence.
The trial court saw fit to submit special [issue No. 3, that required the jury to answer what, if in any amount, appellant was indebted to appellee on April 15, 1924, and the jury having answered $3,133.42, we were called upon, by an appropriate assignment, to determine whether the facts justified this submission and authorized the finding. In determining the matter, we gave no consideration to pleading or evidence on other issues, for the obvious reason that, if in either respect error existed, the case would have to be reversed.
Appellee contends that the court erred in holding'him estopped to deny that he was indebted to appellant on April 15, 1924; because (1) estoppel in this connection was not pleaded, (2) elements of estoppel in pais are lacking, (3) the issue was neither submitted nor requested by appellant, and (4) the question was not properly raised by an assignment.
The question, in our opinion, was properly raised in assignment No. 53a, and in assignments Nos. 61 and 62 the error of the court in rendering judgment on the verdict, because not supported by pleading or evidence, is also properly raised, and questions germane to these assignments presented in appellant’s propositions Nos. 11 and 12 were also considered in this connection; therefore, the contention that the court was without jurisdiction, for want of proper assignment, is overruled.
The question we are now considering Is not a defensive matter at all, but involves the right of appellee to have the judgment affirmed on the verdict of the jury, to the effect that appellant was indebted to him on April 15, 1924, in the sum of $3,133.42.
The phrase “estoppel by contract,” employed in this connection, means no more than that a party is bound by the terms of his own contract until set aside or annulled for fraud, accident, or mistake. Estoppel by contract is not, strictly speaking, an estop-pel in pais, because it lacks several of the essential elements of an estoppel in pais, but is regarded merely a form of quasi es-toppel based on the idea that a party to a contract will not be permitted to take a position inconsistent with its provisions, to the prejudice of another. 21 C. J. 1110, § 110.
This doctrine is, in our opinion, applicable to and decisive of the question under consideration. Appellee based his right to recover upon three written contracts between himself *132and appellant; these he attached as exhibits to his petition, and were by him introduced in evidence. The second contract, the one under consideration, is dated April 15, 1024, and contains the excerpts, copied in our original opinion, relative to appellee’s existing indebtedness to appellant. While the amount of appellee’s indebtedness to appellant at this time is not mentioned in the contracts, the existence of an indebtedness is made certain by the language employed, in fact payment of said indebtedness, as disclosed by provisions of the contract quoted, seems to have been a major consideration.
With reference to this indebtedness, appellee made the following allegations: “That at the time defendant induced plaintiff to come to Dallas, defendant claimed plaintiff was, at such time, indebted to defendant in the sum of $5,500, but that plaintiff, as a mat ter of fact, was only secondarily liable to defendant for said amount, as shown herein, as follows: that said indebtedness, or rather said purported indebtedness, grew out of the failure of some of the subagents appointed by plaintiff and approved and accepted by defendant in plaintiff’s territory to pay the nets, that is, the defendant Company’s part of the first year’s premiums; that at the time of plaintiff’s appointment of such sub-agents and each of them, such agent executed a bond to defendant Company to secure defendant Company in the payments of such nets, and such bonds completely indemnified defendant Company for each and every dollar purported to be owed by plaintiff to defendant corporation; that defendant corporation, actuated by malice,, and in conformity with its scheme to breach its contractual obligations to plaintiff, failed and refused to enforce such bonds, -and refused to insist or compel such sub-agents to pay such notes, but instead, charged said amounts to this plaintiff’s account, claiming that this plaintiff was liable therefor; that this plaintiff was not liable and could not have been liable inasmuch as defendant corporation faffed and refused to enforce the bonds running to defendant and amply and absolutely securing them in such indebtedness, but plaintiff, under pressure from defendant corporation and then too relying upon representations of defendant, and also realizing he had. a valuable agency in El Paso, that he had spent large sums of money in advertising and building up such agency, and believing himself to be in a position to reap the benefit of his work in said territories and of the money and time and efforts he had spent in advertising, etc., acquiesced in defendant’s charging said nets to his account; but that this was acquiesced in by plaintiff only with the understanding that this would be done for the purpose of more easily keeping the records clear, and with the distinct understanding that defendant corporation would, at some future time, do its utmost to recover such nets from such subagents and if necessary would recover same on their bonds.”
The net result of the agreement, based in part on the fact of an existing indebtedness due from appellee to appellant, and the admissions -of appellee in his petition, is to the effect that appellant was claiming an indebtedness of $5,500, for the payment of which appellee admitted secondary liability, and had acquiesced in the amount being charged to his account, with the understanding on the part of appellant that, at some future time, effort would be made to recover on the bonds of the subagents, who were primarily liable.
This being the undisputed state of the account as it existed on April 15, 1924, we are of opinion that the submission of special issue No. 3 and the answer of the jury were not authorized by evidence, and that the judgment, based in part thereon, is erroneous and should be set aside, unless we should presume that the trial court made other findings from evidence, in such manner as to support the judgment. We are of opinion, however, that no such presumption can be indulged, because appellee did not seek cancellation of the contract or the annulment of any of its provisions. He charged appellant with fraud, deception, etc., but -not as a part of a plea seeking cancellation of the contract; but these allegations were made in support of his plea for damages. As appellee made no attempt to have the contract canceled or any of its provisions annulled, the submission of such an issue would have been unauthorized; hence we cannot presume that the court found an issue not authorized by the pleadings.
We have carefully considered all grounds urged by appellee for a rehearing, but finding no reason to change our former decision, the motion is overruled.
Overruled.