On Motion for Rehearing.
Appellee Dawley insists that the instruction given by the trial court in the third paragraph of his charge to the jury, to the effect that the burden of proof was upon plaintiff to establish by a preponderance of the evidence the affirmative of the issues submitted, should be construed as a qualification of the instruction given in the second paragraph of the charge, to the effect that one who charges fraud must prove its existence by legal and competent evidence to the satisfaction of the jury, and that therefore this court erred in holding, as a cause for reversal, the instruction last referred to. Appellee stresses the decision of Carl v. Settegast (Tex. Com. App.) 237 S. W. 238, as supporting that contention. After further consideration, we adhere to our former ruling upon that question. In the first place, the two instructions were in separate and distinct paragraphs, neither of which specifically referred to the other. The instruction in paragraph 2 clearly states that the fraud must be proven to the satisfaction of the jury, and if, as contended by appellee, the instruction noted in the third paragraph of the charge is to be construed as meaning that plaintiff was required to prove the af- . firmative of the issue by a preponderance of the evidence only, then that instruction is clearly in conflict with the one in paragraph 2. In S. K. Ry. Co. v. Sage, 98 Tex, 438, 84 . S. W. 814, the judgment of the trial court was reversed, and one of the grounds for reversal was conflicting instructions that had been given to the jury, one of which was correct and the other erroneous. The court, in disposing of that question, said: “Which of the conflicting charges was followed we cannot tell.” In addition to the authorities cited in the original opinion, it was held in the following cases that an error committed upon the trial of a case is presumed to be harmful and a reversal must follow, unless it appears from the record that it worked no injury to the complaining party. Bell v. Blackwell (Tex. Com. App.) 283 S. W. 765; Wichita Valley Ry. Co. v. Williams (Tex. Com. App.) 288 S. W. 428; Eastland Co. v. Davisson (Tex. Com. App.) 298 S. W. 268; and other decisions cited in those cases.
As shown in the original opinion, we stated that, in the absence of some reasonable explanation of why the written contract between Davenport and Dawley, dated August 30, 1919, did not stipulate $360,000 as the price to be paid for the property by Dawley instead of $400,000, the inference might be indulged that Davenport’s agreement, made contemporaneously therewith in his letter to Dawley, to pay him 10 per cent, rebate, or $40,000 of the $400,000 which Dawley was to *164pay for the property, was understood and intended to be a contract to pay Dawley that sum as a commission for negotiating a sale to other persons rather than a rebate to Dawley for the price he himself was to pay for the property. Appellee Dawley had construed that statement as a finding of fact by this court that there was no satisfactory explanation with respect to the matter therein stated, and he has cited testimony at great length to prove that a satisfactory explanation was in fact proven. It did not occur to us that that interpretation would be placed upon the language used, as we thought it clearly appeared that we were merely citing evidence introduced upon the trial from which the jury might find in plaintiff’s favor if they had been told that they could do so upon a preponderance of the evidence in support of that finding. Whether or not the explanation made was satisfactory would be a question for the jury, and, in view of some of the evidence, especially the fact that some of the checks given by Davenport to Dawley were marked on their face “commission,” as pointed out in our original opinion, it could not be said and we did not intend to hold, and could not hold, that the explanation was satisfactory as a conclusion of law.
In a separate motion for rehearing filed by appellee H. L. Hunter, the point is made that we were in error in stating in our original opinion that Dawley testified that, after the property was first presented to him by Stanley Watson, the broker employed by Davenport to find a purchaser, he discussed the purchase of the property with I-I. L. Hunter, vice president of the Marigold Oil Company, before he went to Wichita Falls to meet Davenport for the first time. Upon further consideration we find that that statement is not borne out by the record, and it is accordingly withdrawn. However, the statement was not given controlling effect in our conclusion that the judgment should be reversed as to Hunter as well as to the other appellees, since there were other facts and circumstances in evidence which reasonably tended to support the charge made in plaintiff’s petition, to the effect that appellee Hunter participated in the fraud alleged, if the same was committed.
Appellee Hunter also makes a point that the error which appellant assigns as to the instructed verdict in his favor was presented as fundamental error in this court, in the absence of an assignment of error to that effect being the first filed in the trial court. It was also pointed out that following that assignment of error appellant did not clearly point out in the record the evidence to sustain it, and it is insisted that by reason thereof this court was not authorized to consider the assignment. In Egan v. Hockney Farmers’ Co-op. Society, 284 S. W. 937, by the Commission of Appeals, it was held, quoting from the syllabus, that:
“The erroneous giving of a peremptory charge is an error of sufficient importance to be classed as fundamental.”
In Barkley v. Gibbs (Tex. Com. App.) 227 S. W. 1099, the following is said:
“As to fundamental error, it need npt be assigned under the holdings in City of San Antonio v. Talerico, 98 Tex. 151, 81 S. W. 518, and Wilson v. Johnson, 94 Tex. 272, 60 S. W. 242. It should be considered if it is apparent on the face of the record.”
In the cited case of Wilson v. Johnson, 94 Tex. 272, 60 S. W. 242, an assignment of error was presented for the first time to the Supreme Court without first being filed in the trial court was sustained because it presented fundamental error, and in that opinion Chief Justice Gaines said:
“Besides, both under the statute and under the rules, the court may consider errors ‘apparent upon the face of the record.’ Since every error must, in one sense, appear upon the face of the transcript, it is difficult to tell what is meant by this language; but we incline to think it intended to signify a prominent error, either fundamental in character or one determining a question upon which the very right of the case depends. Harris v. Petty, 66 Tex. 514 [1 S. W. 525].”
It is a familiar holding that the rules governing procedures in Courts of Civil Appeals are made for the convenience of those courts in order to facilitate their labors, and, to the end" that the right of appeal be not abridged, they may consider assignments of error even though not presented in accordance with the rules. C., R. I. & G. Ry. Co. v. Pemberton, 106 Tex. 463, 161 S. W. 2, 168 S. W. 126. Furthermore, our examination of the record in determining the merits of appellant’s first assignment of error necessarily discloses the part taken in the transaction by H. H. Hunter as well as by the other appel-lees.
We will say further, with reference to both motions for rehearing, that there were other facts and circumstances in evidence not specifically pointed out in opinion on original! hearing, which tended to support the allega-1 tions of fraud as against all the appellees.
The motions for rehearing referred to above are overruled.