On Motion for Rehearing.
It is true that, appellee, Miller, testified that according to his recollection the copy of the resolution of the stockholders’ meeeting of the Olney Ice Company, set out in our original opinion, was not an exact copy of the resolution passed at that meeting. However, he did testify that there was such a meeting and a resolution of some kind passed which embodied the agreement between him and Winn and Utts cashier of the Farmers’ State Bank of Burkburnett. However, Miller’s testimony as to the agreement was substantially the same as embodied in the stockholders’ resolution offered, referred to above. In part he testified as follows:
“As near as I can state the language of the agreement, as well as I can remember, was *718we agreed to sell our stock at par. That was executed, to the best of my recollection, about the 1st of January. It was before February 6th as regards the execution of the contract with Mr. Morgan; it was before, I think. At any rate I got a paper of some kind. * * * All I remember about the agreement was that I was just authorized to sell the Winn interest. We were in a drug store in Burkburnett when we signed that agreement we were talking about a while ago. ⅜ * ⅜ As to the conversation between Mr. Utts and myself about the matter, I think we were talking about the plant in general, and I made the remark, I says, ‘I have an opportunity to sell out.’ He never asked me to who or for how much money; I says, ‘We have been sort of dickering along on this thing; I don’t know whether it is going to materialize or not.’ He says, ‘Why not sell our stock too?’ I says, ‘Well; if they want to buy it I can sell it for you. I don’t know how it will turn out, whether these parties will take my word for it or not. You have your stock up here and when they go to buy this stock I think they will want to know who owns it, and whether I can produce it or not.’ I-Ie says, ‘We will give you authority to sell this stock.’ I says, ‘All right; we’ll do that then.’ That is the substance of the conversation. That was leading up to the signing of this agreement.”
Testifying further relative to the conversation he had with Winn on the occasion when the agreement or resolution was executed, Miller said;
“I testified a while ago- he didn’t want his left. That agreement was to sell our stock at par; he didn’t want me to take my $15,000 worth of stock and wreck the price of his; I didn’t want him to take his $5,000 worth of stock and wreck the price of mine, so we agreed we’d take par for our-stock; it was up to me to get better thnn par for mine; they had the same privilege. * * * I had already made up my mind and agreed with these gentlemen and taken the power of attorney and agency to sell that stock as par, and yet after I talked to Mr. Morgan I raised the price to $25,000. I did not intend to keep $20,000 and give him $5,000. As to what I intended to give him out of it, I intended to give him his pro rata of what the stock sale came to.”
We adhere to the conclusion reached on original hearing that the pleadings and evidence tended to- show a trust relation between Miller and Winn relative to the sale of Winn’s stock; in other words, we believe that the evidence was sufficient to support the finding of an agreement on the part of Miller and Winn to sell the entire capital stock at par and to account to Winn for his pro rata part óf that price. We also adhere to the conclusion reached that the pleading was sufficient to present that issue, and that the record clearly shows that the trial court did not determine it, but based his judgment on a separate and distinct theory. If the trust relation was established, and if Miller breached it, thenjiis action in so doing was a constructive fraud on Winn, and in our original the term fraud was used in that sense only. Upon another trial of the case the issue of whether or not the trust relation mentioned above was created, and whether or not it was breached by Miller, is an issue to be determined by the jury, or by the trial judge in the absence of a jury, like any other issue of fact. We did not intend to hold nor do not now hold that upon the same evidence heard upon the last trial, the trial court should instruct a verdict in Winn’s favor upon these issues if .the next trial is before a jury.
Furthermore, after a more mature consideration of the question, we have reached the conclusion that we were in error in bold-ing that the contract between Miller and the Morgan Utilities Corporation was ambiguous upon its face, and that therefore the court did not err in admitting parol testimony offered by Miller to support his pleadings, to the effect that it was the understanding and intention of the parties to that instrument that only Miller’s three-fourths interest in the stock was sold. We are now of the opinion that there was no ambiguity in the contract and that it showed on its face an agreement on the part of Miller to sell all of the capital stock in the Olney Ice Company for a consideration of $20,000. It will be noted that after reciting the fact that the authorized capital stock of the Olney Ice Company was $20,000, three-fourths of which was owned by Miller and one-fourth was owned or held by the Farmers’ State Bank of Burkburnett, Miller bound himself to sell and convey to Morgan “the aforesaid stock in the aforesaid corporation.” And in the paragraph following is the stipulation that the “total consideration for the said' stock” is the sum of $20,000. Upon the face of the contract we believe that those stipulations should be construed, as a conclusion of law, as having reference to the entire capital stock of the corporation and as binding Miller to sell it for a consideration of $20,000. At the time the contract was executed, Winn’s stock was in the Farmers’ State Bank, while Miller had possession of his own stock. Other stipulations in the contract that Miller’s three-fourths interest in the stock should be deposited in escrow to await the final payment of the consideration, and that until the full consideration was paid Miller was to be employed as the chief engineer of the ice plant, were not inconsistent with and did not render ambiguous Miller’s agreement, expressed in the foregoing provision of the contract binding him to sell all of the capital stock for a consideration of $20,000.
While Miller specially pleaded that the failure to embody in the contract the specific stipulation that only his three-fourths interest in the stock was contracted to be sold was due to the mutual mistake of the parties in drafting the instrument, yet no testimony was offered to support that allegation. In *719the absence of such proof, and since there was no ambiguity in the contract, parol evi-_dence offered by Miller to show the real intention and agreement of the parties to the contract, all of which was duly objected to by appellants at the time, could not be given any legal effect. Pomeroy’s Equity (2d) vol. 5, § 296; Coverdill v. Seymour, 94 Tex. 1, 57 S. W. 37; Reagan v. Bruff, 49 Tex. Civ. App. 226, 108 S. W. 185; Henry v. Phillips, 105 Tex. 459, 151 S. W. 533; Morrison v. Riley (Tex. Civ. App.) 198 S. W. 1032; 2 Williston on Contracts, § 631.
It is a familiar rule that one for whose benefit a contract was made may sue thereon, even though his name be not signed thereto, and even though he paid no consideration therefor. Roberts v. Abney (Tex. Civ. App.) 189 S. W. 1101, and authorities there cited Simpkins on Contracts, 8397; Southwestern Graphite Co. v. Burnet Nat. Bank (Tex. Civ. App.) 255 S. W. 676.
Accordingly, appellee, Miller’s, motion for rehearing is overruled.