On Motions for Rehearing.
Both parties have filed motions for rehearing and written arguments. We have given their contentions careful consideration and are still of the opinion that the judgment should be reversed and the cause remanded, though we will in some particulars modify and correct the original opinion.
The appellee’s first contention is that the trial court correctly sustained the demurrer to the appellants’ cross-action, because every essential fact constituting the cross-action was contained in appellants’ defensive pleadings and such facts were resolved by -the jury against appellants under proper instructions from the court. We think this contention is too broad and is not sustained by the record. In the court below the appellee made no issue whatever with respect to whether he had represented that the hotel in question could be built for $340,000 and that issue would not necessarily be involved in order that plaintiff might make out a prima facie ease. This issue was interposed'by appellants. The ground of the cross-action was, in the main, misrepresentations made by Rittenberry to the appellants concerning his qualifications, skill, and ability in respect to the work for which he was to be employed, and they seek to defeat his recovery and recover damages for fraud in the matters of inducement with reference to .the cost of the six-story hotel, which they alleged appellee represented could be built for $340,000. In the cross-action it is charged that the first representation that the six-story building could be erected at a cost of $340,000 was made in January, 1927, and that in April, 1927, a written estimate was made fixing the probable cost at a sum not to exceed $375,000.
The appellee further contends that because the appellants did not allege reliance upon the representations made by Rittenberry that the court properly sustained the general demurrer. It is alleged by appellants that: “Plaintiff well knew that the defendants would not proceed with said hotel venture except in reliance upon an estimate of cost thereof. * * * That after the plans for said hotel were revised fo call for a six-story building following the conference in Ohicago in the month of January, 1927, apd in response to inquiries in that regard, the plaintiff claimed and represented to these defendants a number of times that said building would not cost more than the amounts the defendants had appropriated and arranged for that purpose, namely, $340,000.00.” “That the plaintiff herein well knew and understood that the defendant Capitol Hotel Co., Inc., would have been wholly unwilling to proceed further with the hotel venture and involve itself in the heavy expenditures of such an enterprise if it had any idea that such hotel would cost more than the ratio above stated.” As against a general demurrer, these and other similar allegations were sufficient to show that the appellants relied upon the estimate made by Rittenberry, and Mayer testified without objection: “I relied absolutely upon Mr. Rit-tenberry’s representations that the building that he had designed could be constructed within the cost of $340,000.00.”
The appellants further contend that we erred in holding that the court erred in admitting testimony to the effect that on August 18, 1927, Mayer contracted with Rittenberry for plans for a $40,000 residence which Mayer contemplated building, the contention being that this evidence was admissible to discredit Mayer’s allegation and evidence attacking the competency and ability of Ritten-berry. The issue was the competency, skill, and ability of Rittenberry to draw the plans, specifications, and make estimates upon a six-story hotel building to cost about $375,000. Mayer had been dismissed from the suit and was no longer a party to the action. Proof of the fact that he contemplated having Ritten-berry plan a house for him was certainly not admissible against the hotel company, nor either of the defendants. His negotiations looking to the building of a residence was a collateral matter and could not be inquired into for the purpose of discrediting him as a witness in this action. Cooley v. Boiders (Tex. Civ. App.) 128 S. W. 690; Dimmitt v. Robbins, 74 Tex. 441, 12 S. W. 94. Moreover, Mayer’s intention to have Rittenberry act as architect in the planning of the residence and proof of that fact was tantamount to the expression of his individual opinion as to Rittenberry’s ability and even a party’s testimony cannot be' discredited by proof of his opinion of the merits of another party. Kirk v. State, 48 Tex. Cr. R. 624, 89 S. W. 1067; H. E. & W. T. Ry. Co. v. Adams, 44 Tex. Civ. App. 288, 98 S. W. 222; 6 Jones Commentaries on Evidence (2d Ed.) p. 4733.
We have reviewed the record with reference to the objectionable testimony elicited from Rittenberry by his counsel through the following statement to the witness: “If I understand your answer, what you meant was that what you.did say on the occasion of signing the contract of September 30, 1926, you told Mr. Mayer that if a different kind of building from the kind of building provided for in the contract was built, that you* would expect your contract of April 8th to hold good.”
Rittenberry had previously testified that preparation of the six-story plans would be governed by the contract of September 30th. He had not testified that it would be governed *714by the contract of April 8th. There would have been no impropriety in having the witness correct his statement relative to the two contracts if he had inadvertently named the wrong one, but for counsel to make the correction in the manner shown by the record, we think was a gross violation of the rules governing the production of testimony.
We have again reviewed the record and are convinced that there is an abundance of testimony in the record raising the issue of the negligence of Rittenberry with reference to the ornamental plaster work for the hotel job. It is unnecessary to set out this testimony at length.
We held in the original opinion that the trial court erred in refusing to give special charges 11, 12, and 13, asked by appellants, and our language apparently approves the charges as being technically correct. We do not mean to hold that the charges correctly gave the law to the jury. Rittenberry’s negligence and delay in furnishing plans and drawings would not defeat his recovery, but, as stated in the original opinion and in the quotation from 4 Tex. Jur. 724, he would be liable for such damages as resulted from his negligence. N.or did we intend to hold that his failure to audit the accounts would be a complete defense to his action to recover compensation for his plans in the light of the fact that the building had been constructed in accordance with his plans. While special charges 11, 12, and 13 were not technically correct, appellants had specifically objected to the defects in the court’s general charge and these objections were sufficient without the necessity of presenting charges which were technically correct. G., C. & S. F. Ry. Co. v. Conley, 113 Tex. 472, 260 S. W. 561, 32 A. L. R. 1183.
The appellee insists that the rule governing the right of an architect to recover as stated in 5 O. J. pp. 260, 270, and quoted with approval in the original opinion, is not the law in this state. We think it announces the correct rule as declared in the Texas decisions cited in the original opinion and in Smith v. Dickey, 74 Tex. 61, 11 S. W. 1049; Emerson v. Kneezell (Tex. Civ. App.) 62 S. W. 551; and Hall v. Parry, 55 Tex. Civ. App. 40, 118 S. W. 561.
The contract of February 1, 1927, which fixed the price for the construction of the hotel at $340,000, shows upon its face that it was the contract for the six-story building. This was introduced in evidence. Tom P. Brennan, one of the contractors, testified at considerable length by deposition, giving the difference between the details, equipment, and appdrtenances of the five-story hotel and of the six-story hotel which was finally constructed. It is clear from this testimony of the witness that he did not have the contract of'February 1st before him, that he thought the five-story hotel building was the one mentioned in the contract and which stipulated for a cost of $340,000, but the contract itself shows that the six-story building was the one mentioned therein. The effect of his testimony, although flatly contradicted by the written contract itself, was to impress the jury with the fact that the estimate of $340,-000 did not apply to the six-story building. We think it is clear from a reading of Brennan’s testimony that he was testifying under a mistaken impression, and since by his deposition he contradicted the writing, the court should have excluded the portions thereof objected to by appellants.
After a careful review of the record in the light of the several motions and the written arguments filed by the parties, we adhere to our original disposition of the case and affirm the original opinion, as modified and explained hereinabove.
Both motions overruled.