The subject-matter of this suit consists of a claim of ownership on the part of appellee of certain ranch lands, and a denial of such claim on the part of appellant, based on the contention that a particular deed, bill of sale, and option agreement, which on their face purport to convey from appellant to appelleé the said lands and cattle on the ranch, are in fact but a mortgage. An alternative claim of appellant is that, if the said instruments are conveyances, he had the option to repurchase the land and cattle on or before a given date by paying a stipulated amount; that he had elected to repurchase within such time, and had paid all or a part of the amount necessary to repurchase or redeem; and, if not all, that he had made timely tender or offer to pay any balance remaining, which had been refused.
A statement of the ease on the first appeal will be found in the opinion of the Court of Civil Appeals at El Paso, 261 S. W. 791, and also in the opinion of the Commission of Appeals, 277 S. W. 91, and 619. The case came to this court on a second appeal, but it appears that the opinion has not been published.
Judgment of the trial court was for appel-lee. The case was tried by a jury, to whom the court submitted the case on special issues. Of the special issues submitted, those, with the answers thereto, that are deemed pertinent to the questions presented for our determination, are as follows:
Question No. 7: “Was there a full accounting and settlement of all partnership expenses and matters by and between C. B. Brown and J. B. Knox, ¿t the time of the execution of the deed and bill of sale in December, 1921? Answer yes or no.”
“Yes.”
Question No. 8: “Was said deed and bill of sale executed by J. B. Knox and wife to C. B. Brown, in December, 1921, intended by said parties' as a mortgage to secure the said sum of $30,213.50 indebtedness paid off or assumed by Brown for Knox? Answer yes or no.”
“Can’t agree.”
Question No. 11: “Did the plaintiff, C. B. Brown, on-or about June 1,1922, purchase from the defendant, • J. B. Knox, his equity, if any, right or claim, if any, to redeem or repurchase a one-half interest in the cattle for the sum of $26,625? Answer yes or no.”
“No.”
If you have answered question No. 8 in the negative, then you will answer the following:
Question No. 17: “Was it the intention of the parties, at the time of the execution and delivery of the deed, bill of sale, and option contract of December 29, 1921, that Brown should acquire title to land described in the deed and to the cattle described in the bill of sale, subject to the right of Knox to repurchase the same on the terms provided in said option contract? Answer yes or no.”
“Yes.”
Question No. 18: “After a full accounting between J. B. Knox and C. B. Brown, from the date of their partnership up to December 29th,' 1921, did J. B. Knox owe C. B. Brown upon said accounting any sum of money? Answer yes or no.”
“No.”
Notwithstanding the failure of the jury to agree upon an answer to special issue No. 8, the trial court gave judgment for appellee. The judgment recites that same is predicated upon the jury’s findings upon special' issues Nos. 7, 11, and 17, and findings in appellee’s favor of all other issues by the court. It is the position of appellant that, because of the failure of the jury to agree upon an answer to special issue No. 8, the court should have declined to accept the verdict and have declared a mistrial.
Appellee by his eleventh proposition contends that, the deed, bill of sale, and option contract being in their nature contractual, and reflecting a complete written contract between the parties, an attempt to vary or modify their legal effect by an alleged oral understanding is within the statute of frauds ; hence there was no legal evidence authorizing a verdict and judgment converting the deed into a mortgage.-
Alternative to the claim that the instruments could not be shown by parol evidence to be a mortgage, appellee asserts a number of propositions by which in varying forms he seeks to show that special issue No. 8, as given, was not a proper submission of the question to be determined by the jury, and, being a defensive matter, and for such reason imposing upon appellee no duty with reference to same, the appellant, having failed to *282formulate and request submission of a proper issue, cannot be beard to complain of tbe failue of tbe jury to answer same, especially in view of tbe fact that special issue No. 17 did properly elicit tbe jury’s finding against appellant and in favor of appellee on tbe very question attempted to be submitted in special issue No. 8.
We construe tbe decision of tbis court upon tbe former appeal to bave determined against appellee tbe question of appellant’s right to show, if be can do so, by parol evidence, that tbe deed, bill of sale, and option contract were in fact intended as a mortgage. Since tbe opinion 'by 'Obief Justice Pannill appears, not to bave been published, we quote from same on tbis point as follows:
“Attention is called to the decision in Ruffier v. Womack, 30 Tex. 332, where, upon contracts almost identical with the ones under consideration, the Supreme Court held that parol evidence was admissible to show that the debt was not extinguished by the transaction, and, if not, the law converted the instruments into a mere security for the debt. This is the leading case on the subject, and has been consistently followed in all later cases dealing with the question. Holmes v. Tennant (Tex. Com. App.) 231 S. W. 313.”
We therefore overrule appellee’s eleventh proposition. We do not think that tbe question of whether or not special issue No. 8 was properly stated is of any importance in considering tbe matters we are to pass upon. It is certain that by that issue tbe court sought tbe jury’s finding on a matter constituting an issue made by both tbe pleadings and tbe evidence. We are not called upon to review any error of tbe court in formulating and submitting that issue. We bave only to.consider whether the jury made a determinative finding of all the issues, including tbe mortgage issue. If such was tbe case, we see no good reason why tbe judgment should not stand.
Appellee insists very forcefully that tbe submission of special issue No. 17 and tbe jury’s finding thereon determined the mortgage issue; that especially is such tbe ease when same is taken in connection with other findings. Just here, may we observe, it is interesting to note that the appellant and appellee each made tbe same objection to tbe court’s action in submitting special issue No. 17 to tbe jury, which objection was that, if tbe jury answered special issue No. 8 in tbe negative (same being tbe only condition under which tbe jury was directed to answer No, 17 at all), tbe finding called for in said issue No. 17 was thereby made a .question of law. If a question of law, there can be no argument, of course, but that same was to be determined by tbe court, and not tbe jury. Both appellant and”appellee now agree that special issues No. 8 and No. 17 relate to the same subject-matter. In tbis we concur. Why, then, could tbe jury reach an agreement as to an answer to No. 17, and. disagree as to No. 87 We can conceive of no reason why tbis should bave been tbe case, if tbe jury understood both questions. We are forced to tbe conclusion that one or both of tbe questions were misunderstood.
Appellant insists that tbe jury were confused as to tbe meaning of special issue No. 17, and appellee is just as certain that tbe confusion existed as to No. 8. Were we to attempt to decide which issue tbe jury understood, and which they failed to understand, it would be a mere speculation. Regardless of any criticism that may justly be made of tbe issue upon which tbe jury could not agree, there seems to us to exist very good reasons to suspect that tbe jury did not understand issue No. 17. It is, we think, susceptible of tbe meaning that it did not seek a finding as to whether title or no title was acquired by Brown (which title was described as one “subject to tbe right of Knox to repurchase, etc.”), but, on tbe contrary, that tbe question called for a finding as to whether tbe title acquired by Brown by virtue of tbe written instruments (whether they were conveyances or a mortgage) was subject, or was not subject, to tbe right of Knox to repurchase. We conclude there was no certain finding on tbe mortgage issue. A predetermination of tbis issue is essential to tbe validity of any judgment that may be rendered on the pleadings and evidence in tbe case.
We think we may accurately state the rule to be that, when a material issue is submitted to a jury in two or more forms as separate special issues, a failure of the jury to agree upon an answer to one, while at the same time answering the others, is such evidence of mistake as to amount to no finding at all upon the issue. Denison v. Brown (Tex. Civ. App.) 172 S. W. 725. The result is the same in such case as in one where there are contradictory findings. See Stoker v. Fugitt (Tex. Civ. App.) 102 S. W. 743; Humble Oil Co. v. Strauss (Tex. Civ. App.) 243 S. W. 528.
The jury’s findings in answer to special issues Nos. 7 and 18 afford, perhaps, a better support for tbe judgment than No. 17; but they too, come within the rule above stated, and afford good illustrations of its soundness. Special issue No. 7 may have been understood by the jury as employing the term “settlement” in the sense of payment; but it does not necessarily have any such meaning, and we ourselves are in considerable doubt as to the sense in which the word is here used. Special issue No. 18, if given its correct meaning, as we understand it, is contrary to all the evidence in the case. All parties agree that, if there was an accounting on December 20, 1921, the result of such accounting showed that Knox owed Brown $30,213.50. The question was: Did Knox make the deed and bill of sale to secure payment of said sum, or did be pay off and discharge same by conveying the land and cattle? If the issue intend*283ed to call for a finding as to the existence or not of an indebtedness after the instruments were executed and delivered, then it was not so formulated as to make such purpose clear. The jury may or may not have so understood it.
By what we have said we do not wish to be understood as expressing unqualified approval of special issue No. 8 as given by the court. It seems to us that it is, at least, subject to the criticism that the term “mortgage” should have been defined or explained for the guidance of the jury. While we are not sure that it is subject to the criticism so strenuously urged by appellee, namely, that it assumed the existence of an indebtedness, it appears to be a little ambiguous in this respect, and may have been so understood by the jury. Upon another trial the court should exercise great care to avoid particularly the things mentioned.
Appellant by his thirteenth proposition urges that the verdict of the jury in answer to special issue No. 7 is against the weight and great preponderance of the testimony, and the trial court materially erred in not setting the judgment aside and granting a new trial. We have already shown how the jury may have misunderstood special issue No. 7, and at any rate we are not prepared to hold that there was no evidence justifying the submission of the issue, and we accordingly overrule the proposition.
We do not deem it necessary, in view of the disposition that must be made of the case, to go into consideration of appellant’s fourteenth proposition, and his propositions 15 to 18, inclusive. We are inclined to the view that appellee’s objection to the consideration of same is good, on the ground that they are multifarious and too general to require consideration.
For the reasons given above, the case is reversed and remanded to the trial court for another trial.