On Motion for Rehearing. At a former day of this term, the judgment of the trial court in this cause was reversed, and the case remanded, with instructions to the trial court to dismiss the case. Appellees have in due time filed a motion for rehearing, praying this court to set aside its judgment in so disposing of this cause, and to affirm the judgment of the trial court.
In the motion for rehearing, appellees contend that this court erred in its opinion, on page 6 thereof, as shown by the following language of the court there used:
"The most that could be claimed upon the petition hereinbefore set out was that the contract sued upon was an oral contract, and that the letters merely ratified the oral agreement; but, even assuming that the letters do constitute a contract in writing, yet such contract does not ascertain the sum payable."
In this connection, appellees say that this court very probably overlooked the testimony of the witness Chas. J. Rogan, which was by deposition, and was as follows:
"My occupation during the summer of 1911 was vice president and General Superintendent of the Beaumont Great Northern Railway *Page 474 Company. When I first approached plaintiff with reference to the sale of the stock, he stated that he did not care to make the purchase of the Compress stock. Plaintiff first rejected the offer of sale, for the reason that he did not consider it a safe investment. I communicated such rejection to W. A. Bell, president of the Trinity Compress Gin Company by word of mouth. I got an answer from my notice. The answer was verbal, also by letter; the letter on the subject has been lost. I did not find the letter from defendant Bell relative to and effecting a sale of this $1,000 worth of stock, and have exhausted every avenue and bypath in the search for said letter. The letter stated, and my verbal instructions were, that I could guarantee Mr. L. F. Gerlach that he (W. A. Bell) would return to him (Gerlach) dollar for dollar of the money paid for the Trinity Compress Gill Company stock at the expiration of one year in the event he (Gerlach) was dissatisfied with the purchase. Mr. L. F. Gerlach accepted this proposition in a letter dated June 19, 1911; letter attached hereto and marked `Exhibit 1' for identification. To the best of my knowledge I had said letter at the time I concluded the sale to plaintiff for the $1,000 stock. Yes; such representations were in the terms of such letter. I stated to Mr. Gerlach that W. A. Bell had authorized me to say that he (W. A. Bell) would take the stock off his hands at its face value at the end of one year if he (Gerlach) was dissatisfied. Mr. Gerlach authorized me to subscribe for the stock, as shown in his letter attached hereto, marked `Exhibit 1' for identification. This letter, to the best of my knowledge, was simply a repetition of the verbal instructions, already given me by Mr. W. A. Bell, that he (Bell) would repurchase the stock of Mr. Gerlach at its face value at the end of one year in the event he (Mr. Gerlach) was dissatisfied; that is, the letter of instructions from Mr. Bell. I acted upon the letter from Mr. Bell, and upon verbal instructions. I made representations to plaintiff by virtue of said letter, and also on the verbal instructions which were already received. Such representations were as heretofore stated. As heretofore stated, I had verbal instructions from the defendant Bell relative to the sale of said stock in the Trinity Compress Gin Company to the plaintiff, and I communicated such instructions to the plaintiff. Defendant Bell authorized me to make such representations and promises to plaintiff, and I did so."
It is contended by appellees in the motion for rehearing that this testimony on the part of the witness Rogan shows that the contract between Bell and Gerlach for the sale and purchase of the stock in question was a written contract, and that the same "ascertained the sum payable," etc., and that therefore the court erred in its original opinion in holding that the contract between the parties was not a written one ascertaining the amount payable.
In reply to the motion for rehearing, we will say that the court did not overlook, in arriving at the conclusion reached in this case, the testimony of the witness Rogan, but had the same clearly in mind; but the court was of the opinion that the testimony of the witness Rogan in the motion showed only that the letter from Bell to himself, claimed to have been lost, was only authority in writing from Bell to him to enter into the contract with Gerlach for the sale and purchase of the stock in question, and that such written authorization to him as Bell's agent to enter into a verbal agreement with Gerlach did not constitute, and would not have the legal effect to make the contract entered into between Gerlach and Bell, acting through his agent Rogan, a written contract between the parties, regarding the purchase and sale of the stock in question, and ascertaining the amount payable in the event of its breach.
We have said this much merely out of courtesy to counsel for appellees, and to show that the court did not overlook the testimony of the witness Rogan as apprehended by counsel.
The motion for rehearing is overruled.