By express agreement between counsel for both sides the sole fact issue on the trial of this cause was thus embodied in the court's charge to the jury:
"This case is submitted on special issue by request of counsel for plaintiff and defendant: Was the contract entered into between Plaintiff and Defendant extended beyond Oct. 1st, 1919? Chas. R. Stewart, County Judge."
True appellant in his pleadings claimed there had also been agreement that he could deliver the lumber for one house at a time, undertook to tender performance through delivery of the lumber, and further recited that he had the lumber in his yard ready for delivery, and had never refused to comply with the terms of the contract, but he abandoned all these matters when it came to turning the cause over to arbitrament by the jury, and voluntarily reduced the dispute to the single inquiry whether the time for performing the contract on his part had been, as he alleged, extended beyond October 1st. Now, in this situation, the question asked the appellee, the objection made to it, and the court's action thereon, none of which, other than the ground assigned by the court for the ruling, are set out in that part of this court's opinion discussing the matter, thus appear from the bill of exceptions.
"Mr. Heidbrink, I will ask you if you made the statement that you did not want the lumber, but wanted the amount of the note?"
To which question counsel for plaintiff objected upon the ground that it was immaterial, irrelevant, prejudicial, and entirely too general, and thereupon the court stated:
"I will sustain that objection on the ground that the contract was never fulfilled."
What either this question to Heidbrink or the court's comment in excluding it had to do with the simple issue of whether the time for delivery of the lumber had been extended beyond October 1st or not I confess does not occur to me. This court is in error in stating in its opinion, after first correctly reciting that "the only issue between the parties was, Had the contract been extended by the plaintiff beyond the 1st of October, 1919?" that an issue was sharply drawn by the evidence to the effect that "before the expiration of such extension he, defendant, had tendered performance, and that plaintiff had refused to carry out his part thereof." On the contrary, appellant's sole contention was that bad weather and roads had interfered, and on that account appellee had extended the time for him to perform, and he explicitly denied that he had ever at any time tendered performance, testifying "that he had never notified plaintiff that the lumber was ready on the cars or ready for inspection at any time," and again, although the contract specially provided that the lumber should be manufactured and ready for inspection by Heidbrink on October 1, 1919, that he should not be required to take it until it had both been tendered to and inspected by him, and that if appellant failed to make such tender he should liable on the note — *Page 301
"witness never at any time notified Heidbrink, either verbally or in writing, that the bill of lumber called for in the written contract was standing f. o. b. cars at Elkhart, Grapeland, or Salmon."
Not only this, but both parties had presented direct testimony as to whether the claimed extension had been granted appellant, so there was no dearth of evidence immediate to that issue.
The amount named in the note, which by its terms matured on October 1st — the same date the alleged extension became effective — represented the liquidated damages it was agreed the appellee would suffer by a failure to deliver the lumber on that date, and if it had been conceded that he preferred the money to the lumber, no light would thereby have been thrown upon whether or not he and his obligor had agreed upon more time within which the latter might carry out one form or the other of his undertaking.
It is thus plainly apparent that the question asked was immaterial, that the court's action in sustaining the objection to it was correct, and that his remark accordingly had no relevancy to what the jury were to consider. This being so, the only remaining consideration is, Did the remark probably influence the jury in merely determining, under direct testimony both ways on it by the litigants themselves, whether an extension of time beyond October 1st had been agreed upon between them? How could it have? How can this appellate court say that a jury of ordinary intelligence, with nothing whatever in this record to indicate that it actually was — and in the face of ample direct evidence to support its finding that there had been no such extension — probably was influenced to render an improper verdict by such an errant remark from the judge? If it cannot, under rule 62a, this judgment ought not to he reversed. There is in the record, as just stated, nothing at all to indicate that the jury responded to other than proper consideration of the direct evidence before it, and in such circumstances it seems to me to be too lightly regarding their solemn verdict and the judgment of the court duly entered thereon to set them at naught.
The rule upon this subject, as I conceive it, is thus tersely stated by the Supreme Court through the Commission of Appeals in the recent case of Express Co. v. Chandler, 231 S.W. 1087:
"Not every comment by the court upon the weight of evidence is reversible. If the comment is upon the weight of evidence concerning a material issue, and is such as will probably influence a jury in its decision, such comment will operate to reverse the judgment."
To the same effect also is the opinion of the El Paso Court of Civil Appeals in Midkiff v. Benson, 235 S.W. at page 294, where, in a suit for damages alleged to have resulted from the breach of a lease contract, the remark of the court that "he did not see what this testimony had to do with the facts of the case, anyway," in reference to whether Benson had paid the pool hall tax for the year 1918-19, was held to be upon an immaterial matter and so not to constitute reversible error.
As further indication that the remark in this instance did not "amount to such a denial of the rights of appellant as was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment in the cause," the bill of exception involved further shows that immediately on objection being made to it the court, in response to a request for that action from appellee's counsel, instructed the jury that so much of the comment as suggested that the contract had not been fulfilled was improper, and not to consider it for any purpose.
The additional statement, to the effect that his first remark was improper and merely an opinion of his, which the majority hold to have aggravated rather than to have removed the effect of the deleted comment, was made by the court, as shown by qualification to the bill, in these circumstances:
"The court allows this bill of exception with the statement that the above and latter remark being merely a side-bar remark, addressed to defendant's counsel, while defendant's counsel was standing at the judge's stand, and while the court was qualifying this bill of exceptions."
I think it in the face of this recital to say that this was done "in the presence and hearing of the jury"; my understanding of the very meaning of the term "side-bar" is that it was apart, and it appears to me that the court so meant to state. But, however that may be, for the reasons already given, I cannot think there was any harmful effect upon the minds of a jury of good hard common sense.
It has long been held in Texas, generally, that a trial judge's remarks, explanatory of his action in excluding immaterial evidence, are not improper, and especially does this seem to me apropos to a side-bar comment to counsel. Black v. Wilson (Tex. Civ. App.) 187 S.W. 494.
My dissent at this reversal is respectfully but earnestly entered; I think the judgment should have been affirmed. *Page 302