On Motion for Rehearing.
This case was reversed at the last term of this court, and appellee’s motion for rehearing was brought over to this term; and, after careful consideration, we have reached the conclusion that the former judgment of this court is wrong, and that the case should be affirmed. As shown by our former opinion, the case was reversed upon two questions of law, which were: First, error of the trial judge in stating in the presence of the jury, while ruling upon the admissibility of certain testimony, that there was a trade relation existing between the plaintiff and the defendant; and, second, in overruling objections to testimony given by Judge Munroe to the effect that appellant’s agent Lastinger had told him that he would advise appellant to accept Judge Munroe’s offer to settle the matter in controversy in the manner suggested. Undisputed testimony coming from witnesses on both sides shows that at the time of the transaction in question business relations had existed between ap-pellee and appellant for a long time, and therefore the remarks made by the judge and complained of by appellant were not calculated to prejudice the latter and the making of such remarks did not constitute reversible error.
[1] As to the testimony of Judge Munroe, appellant alleged in his answer that appel-lee abandoned the contract, and it may be that the testimony was admissibie for the purpose of disproving that averment. According to the bill of exception, the only objection made in the court below to the testimony was that of immateriality, for the reason that the expression of an opinion by an agent cannot be used for the purpose of impeachment, if offered as contradictory testimony. Lastinger testified that he had no recollection of making the statement testified to by Judge Munroe, but he did not deny that he had made such statement, and it does not appear from the record that the testimony was offered for the purpose of impeachment. If Lastinger was appellant’s agent and had plenary powers including authority to act for appellant in the particular matter, the testimony was admissible because it tended to show an, admission by an authorized agent, unless obnoxious to the objection that it tended to prove an offer or willingness to compromise, which objection was not made. We cannot hold that the testimony was immaterial, and that seems to be the only objection that was urged against it
[2] Furthermore, testimony substantially the same as that complained of was given by appellee, Palmo, and was not objected to by appellant, and for that reason the case should not be reversed, even if Judge Mun-roe’s testimony was not admissible. Appel-lee testified: “I went to Mr. Lastinger with reference to this contract, and Judge Mun-roe said, ‘Why don’t you kinder get this matter straight, Mr. Lastinger?” Mr. Lastinger spoke and said, ‘Well, it ought to be settled.’ Judge, he said, ‘Well, why don’t you settle it?’ ‘Well,’ he- said, T don’t know. 1 am going to write to Mr. Slayden and make him settle it.’ ” We perceive no difference in substance between the testimony of Judge Munroe that was objected to and the testimony given by appellee that was not objected to, and, as Lastinger did not deny making the statement, we hold that the case should not be reversed on account of the admission of Judge Munroe’s testimony.
[3] We have also reconsidered the testimony bearing upon the merits of the case, and while that tending to support the verdict is not entirely satisfactory, as reflected by the statement of facts, we cannot hold that there is no testimony to support the verdict. In order to find for the plaintiff, the court’s charge required the jury to find that appellant had ratified the contract sued upon. There was some testimony, and especially that given by the plaintiff while on the stand as a witness, tending to show that the defendant Slayden in person had ratified and adopted the contract. There was also testimony tending to show that W. H. Last-inger was Slayden’s agent with plenary powers, and that acting as such agent he had ratified and adopted the contract for Slay-den. This is the third time that the jury has rendered a verdict in favor of appellee, and therefore, although the testimony in support of the verdict seems meager and unsatisfactory, nevertheless, being the third verdict to the same effect, and the trial judge having refused to set it aside, we think it should be permitted to stand, and thereby terminate the litigation.
For the reasons stated, and in deference to the finding of the jury, we hold that the verdict is supported by testimony; but before leaving this subject we deem it proper to say that we cannot agree with the apparent contention of appellee’s counsel that, because this is the third verdict in appel-lee’s favor, it should not be reviewed by this court, no matter what testimony may or may not have been presented to the jury. In support of that contention, counsel for appellee attribute to the Supreme Court a statement in the syllabus in Duggan v. Cole, 2 Tex. 396, which reads : “A second verdict will not be set aside as being contrary to and unsupported by the evidence after a motion for a new trial upon that ground has been refused in the court below, notwithstanding this court cannot perceive upon what evidence the jury found their verdict.” The first opinion in that case was written by Mr. Justice Lipscomb, and he stated that if the witnesses did not directly contradict each other they swore to facts from which *652very opposite conclusions might justly have been drawn, and for that reason the Supreme Court could neither say the' verdict-was without testimony or that it was contrary to evidence. The opinion on the- motion for rehearing was written by Mr. Jus: tice-Wheéler, and in reference to the verdict he said: “I confess my inability very clearly t'o see upon what evidence the- jury did arrive at the exact result which constitutes their verdict. But I cannot undertake to say that they found without'or against evidence. I can only say that, to my mind, the evidence is unsatisfactory. Since, however, it has been sufficient to satisfy two juries, and especially since the judge who presided at the trial, with means of forming a correct judgment very superior to those which we' possess, was satisfied with the verdict, I cannot undertake to disturb it.”
Hence it appears from a reading of the opinions that the Supreme Court did not go to the extent indicated by the syllabus in that ease, nor did the court use the language attributed to Judge Wheeler by counsel for appellee in their motion for rehearing. We presume counsel accepted the Syllabus as correct, and felt justified in attributing- its language to Judge Wheeler; but in that respect they were mistaken.
For the' reasons above stated, the judgment rendered by this court at its last term, reversing the case, is set aside, and the judgment of the court below is affirmed.
Rehearing granted, and judgment affirmed.