This suit was originally instituted by John J. McPherson against C. W. Hahl and P. A. Connable, parties composing the firm of C. W. Hahl & Co., and the Houston National Bank, on the 16th day of March, 1909. The first trial of this cause was before the court without a jury, and judgment was then entered for appellee, McPherson. Prom this judgment, Hahl & Co. appealed to this court. As Judge Reese, in an opinion reported in 133 S. W. 515, reversing the judgment of the trial court, has made a full and complete statement of the case as then presented by the pleadings and facts proven, we will therefore not restate the same further than as may be rendered necessary by an *805amendment of appellee’s petition filed subsequent to the former appeal.
The court in the opinion referred to did not hold the clause of the contract of February, 1909, the meaning and scope of which was in issue, to be unambiguous, but emphasizes the fact that there were no allegations in the petition that the terms in the agreement, “in the full exercise and enjoyment of the contract and its terms,” bore other than ordinary significance, or that they were understood by the parties in any other sense, or that by mutual mistake the contract failed to express the meaning and intention of the parties, and that if there was anything in the circumstances under which the contract was executed to indicate that the parties understood said contract to bind Hahl & Co. to get such an instrument as would protect appellee against outstanding liens, it was not alleged in the petition, nor shown by the evidence, which showed only the existence and assertion, in a pending suit, of the vendor’s lien and right to rescind and recover the land. It may be that the evidence on the last trial, and upon which ap-pellee in his brief relies to support his interpretation of said contract of February 25, 1909, would put a different view upon the matter. The amended petition upon which the ease was last tried contains the following allegations:
“That at the time this contract was executed neither plaintiff nor his attorneys knew with any accuracy the state of the title to these lands; they had never seen an abstract of the title, and the only information they had with reference thereto was from rumor and from statements made by defendants; that the defendant C. W. Hahl represented that on the day following the execution of the supplemental agreement, heretofore copied in this pleading, he was going to consummate a transaction that would enable him to place the lands in plaintiff’s hands for sale free from any imperfection as to title, and that the title would be in good and satisfactory condition, and that the extension of the contract which he was to procure under this supplemental agreement would be sufficient to protect the plaintiff and his associates in the full exercise and enjoyment of the contract in all its terms. By this expression it was meant and understood that the defendants would procure an extension of the contract binding upon the owners of the superior title to the land whoever they might be, or would exhibit releases of any liens or incum-brances that might be menacing sale or foreclosure of the land and it was' especially understood that the defendants were to procure the concurrence of certain clients of Messrs. Oocke & Cocke, attorneys of San Antonio who held certain liens against the land, the names of these clients not being divulged to the plaintiff or his attorneys at the time of these negotiations; and, since neither plaintiff nor his counsel was familiar with the details of the title or the nature and extent of the imperfection that existed in it. if any, or the nature and extent of the liens that might be against the land subjecting it to sale, these things were not enumerated or set out at length in the contract, but under the assertions of the defendants that all of the objections to the title would be obviated in such way that the sales could go forward without interruption, and that plaintiff and his associates could make sales and deliveries of the land free from objections on account of the title, it was written in the contract of the 23d of February, 1909, that this extension agreement to be procured would be sufficient to fully extend the original contract and protect the said McPherson and Prudential Land Company in the full exercise and enjoyment of the contract and its full terms, which meant, and was so understood by the parties thereto to mean, that defendants were then entering into various negotiations and arrangements, the full nature of which were not disclosed to plaintiff or his counsel and the names of the parties with whom had were not disclosed to the plaintiff or his counsel, but that under these arrangements then going forward and in process of early completion, the title to the lands would not only, be left in good condition and be made acceptable to plaintiff and his counsel and any purchaser that plaintiff might have for the lands, but the title t,o the land would be in fact made good and merchantable.”
As we construe both the opinion of Judge Reese, supra, and an opinion written by Judge Higgins of the Eighth supreme judicial district, reversing the judgment of the lower court on the second appeal of this case, reported in the 151 S. W. 323, neither of them held the clause, “in the full exercise and the enjoyment of the original contract and its terms,” was unambiguous, hut upon the contrary, we think both of them clearly intimate that, under proper allegations supported by proper and sufficient proof, it was a question of fact whether or not such clause would have required Hahl & Co. to obtain from the holders of the vendor’s and other superior liens, agreements whereby appellee, McPherson, would have been fully protected in the exercise and enjoyment of the original contract and its terms, and under the paragraph of appellee’s amended petition above quoted, we think it was admissible to show these facts; the language of said contract above quoted being ambiguous.
Upon the third and last trial, before a jury, from which this appeal is taken, the court gave the following instructions:
“The plaintiff in this case sued upon a written agreement dated the 23d day of February, 1909, by the terms of which the defendants bound themselves to procure the written extension of a former contract between the same parties. By the terms of this writing sued upon, it was agreed that the defendants would procure and deliver to the plaintiff an extension of the former contract in all things fully extending and ratifying the terms of said contract of September 10, 1908, for a period of 90 days from and after March 15, 1909, such extension to be binding upon said Hahl & Co., C. W. Hahl, and F. A. Connable and the owners of said land and to be sufficient to fully extend said contract and protect McPherson and the Prudential Land Company in the full exercise and enjoyment of said contract and its terms. The plaintiff contends that by this writing it was agreed and understood that the defendants were to procure the concurrence in this extension of the owners of the superior title to the lands referred to, that is to say, the concurrence of certain persons holding vendors liens against this land; that it was necessary to the enjoyment of their contract that such concurrence be procured. The defendants deny that they undertook to procure the consent or concurrence in this extension of any persons other than C. W. Hahl, F. A. Connable, and W. J. Candlish which they tendered to *806plaintiff, and deny that they undertook to procure the concurrence of the owners of the superior title. This is the single and only question in the case for your determination, and your verdict will be in the form of an answer to the following question: ‘Did or did not the defendant O. W. Hahl agree with the plaintiff, acting through his attorneys, Messrs. Pen-Ion and Wharton, on the date above referred to, to procure the consent and concurrence of the owners of the superior title, that is, the outstanding vendor’s lienholders in and to the extension agreement of February 23, 1906?’ Tour answer will be.either that, ‘The defendant, Hahl did agree and undertake to procure the consent of the owners of the superior title,’ or that, ‘The defendant Hahl did not agree and undertake to procure the consent of the owners and holders of the superior title,’ as you may find the facts to be. In this connection you are instructed that the burden of proof is upon the plaintiff to establish the facts necessary to a recovery herein, by a preponderance of the evidence, and if he has failed to do so, you will answer the above special issue in the negative, you being the exclusive judges of the facts proven, of the credibility of the witnesses and of the weight to be attached to their testimony; but you must take the law from the court as herein given, and applying same to the facts so found by you, return your answer in accordance therewith.”
The jury returned a verdict answering the question submitted:
“We, the jury, find that the defendant Hahl did agree and undertake to procure the consent of the owners of the superior title.”
Upon this finding of the jury, judgment was rendered for the plaintiff for the $2,000 in escrow.
The material questions involved upon this appeal are;
First. Whether or not an issue is raised by tlie evidence as to wbat was understood and meant by tbe parties to the contract or agreement of February 23, 1909, by the clause above quoted, the meaning of which, we hold is in dispute.
Second. Was the testimony of Thos. P. Fenlon and O. R. Wharton, appellee’s attorneys who drew the agreement sued upon, and the testiinony of Mr. Cocke of San Antonio, an attorney for one of the lienholders, and the affidavit of appellee, McPherson, admissible over the objection of appellants, and was such testimony relevant or material to any issue.in the cause?
Third. Did the court err in instructing the jury that:
‘The plaintiff contends that by the written agreement sued upon, it was agreed and understood that the defendants were to procure the concurrence, in the extension of the former contract, of the owners of the superior title to the lands referred to, that is to say, the concurrence of certain persons holding liens against said land; that it was necessary to the enjoyment of appellee’s former contract that such concurrence be procured; that the defendants deny that they undertook to procure the consent or concurrence in said extension of any persons other than O. W. Hahl, F. A. Oonnable, and W. J. Gandlish which they tendered to plaintiff, and deny that they undertook to procure the concurrence of the owners of the superior title. This is the single and only question in the case for your determination, and your verdict will he in the form of an answer to the following, question: ‘Did or did not the defendant O. W. Hahl agree with the plaintiff, acting through his attorneys, Fenlon and Wharton, on the date above referred to, to procure the consent and concurrence of the owners of the superior title that is, the outstanding vendor’s lienholders, in and to the extension agreement of February 23, 1909 ?’ ”
Answering these questions in the order here stated:
(1) We think the testimony of the witness named was sufficient to raise the issue of whether or not it was contemplated and understood by the parties that Hahl & Co. were required to obtain proper agreements or releases from tbe holders of the superior liens by the clause in the contract of February 23, 1909, that the extension contract to be secured by Hahl & Go. under the provision of said agreement of February 23d, should be sufficient to protect McPherson in the full exercise and enjoyment of the original contract and its terms.
[1,2] (2) That the admission of such testimony was not error. This testimony tends to shed light upon the whole transaction between the parties, and thus enable the jury to arrive at the true purpose and intent of the parties in inserting the clause in dispute'in the contract of February 23d. There may have been, and we think there were, parts of the affidavit of McPherson introduced in evidence which were immaterial and did not tend to prove any issue in the. cause, hut as some portions of said affidavit were admissible to explain the transaction in question, the general objection of appellants to the whole could not have been properly sustained by tbe trial court.
(3) The charge of the court complained of in appellants’ seventh assignment of error-was erroneous in that it instructed the jury that:
“The single and only question in the case for your determination and your verdict will be in the form of an answer to the following question : ‘Did or did not the defendant O. W. Hahl agree with plaintiff, * * * on the date above referred to [February 23, 1909], to procure the consent and concurrence of the owners of the superior title, that is, the outstanding vendor’s lienholders, in and to the extension agreement of February 23, 1909?’ ”
—without requiring the jury to find from the written agreement and the evidence as to what was intended and understood by tbe parties by the clause in the contract, “in the full exercise and enjoyment of said contract and its terms.” We think the jury should have been instructed to find what, under all the evidence, inside and outside the written agreement, was the intention of the parties in inserting such clause in said contract.
In the case of Holman v. Oil Co., 152 S. W. 885, at page 891, Judge Reese, in rendering the opinion, says:
“We think that the evidence presents a mixed question of law and facts which should have been referred to the jury for its determination under appropriate instructions; the issue being what, under all the evidence, inside and outside the deed, was Holman’s intention as to whafi *807land was conveyed?” (citing Kingston v. Pickins, 46 Tex. 99; Brown v. Chambers, 63 Tex. 131; Arambula v. Sullivan, 80 Tex. 618, 16 S. W. 436).
We think that appellants’ eighth assignment oí error, in so far as it insists that the verdict of the jury is not responsive to the sole issue in the cause, and therefore insufficient to support the judgment entered, should he sustained. The verdict of the jury:
“We, the jury, find that the defendant Hahl did agree and undertake to procure the consent of the owners of the superior title”
—is no answer to the question as to what the parties intended and understood by the use of the clause “in the full exercise and enjoyment of the contract and its terms,” inserted in the contract of February 23,1909. We think the jury should have been required to find from the language of said contract, and the evidence admitted with reference to what was said and agreed to by the parties at the very time said contract was made. From the answer of the jury, shown by their verdict, it might be inferred that they intended to find that at some time shortly before or shortly after said contract was executed Hahl did agree and undertake to procure the consent of the owners of the superior title to the extension contract called for by said contract of February 23, 1909. If said verdict may be so interpreted it is not sufficient to support the judgment entered. No'part of an agreement made shortly after the contract was executed can be shown and be considered a part thereof.
For the errors mentioned, we think the judgment of the court below should be reversed and the cause remanded, and it is so ordered.
Reversed and remanded.
<&wkey;>For otter oases see same topic and ICBY-NUMBER in all Key-Numbered Digests and Indexes