S.W. Slayden Co. v. Palmo

KEY, C. J.

This case has been before this court several times, and the nature of the suit and the rulings heretofore made can be ascertained by examining 90 S. W. 908, 100 Tex. 13, 92 S. W. 796, and 53 Tex. Civ. App. 227, 117 S. W. 1054. Upon the last appeal this court held that the contract purporting to have been made by S..W. Slay den & Co., and for a breach of which appellee is seeking to recover damages, was not- within the scope of the partnership business of that company, and was not binding upon S. W. Slayden, against whom recovery was had, unless it could be shown that after it was made S. W. Slayden had ratified the same. The case was reversed and that issue left open for trial; and at another hearing the jury decided it in favor of Palmo and against S. W. Slayden, and the latter has appealed.

While a number of other questions have been presented in appellant’s brief and received consideration at our hands, we are of opinion that none of the assignments point out reversible error, except the nineteenth and twentieth, and those which challenge the verdict as being contrary to the great weight and preponderance of the evidence. The bill of exception copied in appellant’s brief under the nineteenth assignment of error shows that, in overruling an objection which appellants had made to a question propounded to the plaintiff while testifying in his own behalf, the trial judge used the following language in the presence of the jury: “The court is of the opinion that all the facts and circumstances surrounding this contract can be proven, and surrounding the making of the contract sued upon, and also the making of the contract with Rowland. There was such a trade relation existing between Palmo and Slayden or Slayden and P.almo as renders it necessary, in order for the court and jury to understand and determine this ease according to its true merits, to understand all those facts, and they will be taken by the jury and considered by them in arriving at what were the true facts in regard to it, and the court will not limit at all the evidence to what is stated simply in those contracts. All these surrounding circumstances, the facts and circumstances leading up to it, and the purposes of the party or parties, and with what view the Rowland contract was made and was attempted to be carried through, I think can be shown. It is one of the issues in this case, and that very purpose is one of the issues in this case. If it was one way the effect of it would be different than it was if it was another, and it is for the jury to determine, and without the facts they cannot determine which way it was.”

The bill shows that appellant’s counsel excepted to that portion of the judge’s remarks in which he stated in the presence of the jury, that there was “a trade relation existing between the plaintiff and the defendant,” and that exception constitutes the basis of the nineteenth assignment of error; and, in view of the long line of decisions by our Supreme Court, we feel constrained to sustain appellant’s contention, and hold that the statement referred to constitutes reversible error. We have a statute which prohibits a trial judge from commenting upon the weight of testimony in charging the jury; and, on account of that statute, our Supreme Court has held that it is reversible error for a trial judge to in any manner state or intimate to the jury his opinion as to how any controverted issue should be,decided, or the weight that should be given to any testimony bearing upon such issue. In the case at bar this court had held that ap-pellee had no ease, unless he could show that appellant had ratified or adopted the contract sued on, and that he was endeavoring to do at the last trial; and no doubt appellant’s counsel were then contending in that court, as they are now contending in this court, that the plaintiff had failed to make such proof, and therefore, in- view of the line of decisions referred to, we hold that it was error for the trial court to make the statement complained of in reference to a trade relation existing between Palmo and Slayden.

By the twentieth assignment appellant complains of the ruling of the trial couit in permitting Judge Richard I. Munroe, while testifying for appellee, to state that one Last-inger had told him that he would advise appellant to accept the witness’ offer to settle the matter in controversy in the manner suggested by the witness. Conceding that Lastinger was appellant’s agent in many other respects, the evidence fails to disclose that he had any authority to ratify the contract here sued on, or to accept the proposition submitted to him by the witness, and therefore the court erred in permitting Judge Munroe to state what he said he would advise appellant to do. The result was that,over the defendant’s objection, the plaintiff got before the jury evidence to the effect that the defendant’s agent Lastinger had recognized the fact that the plaintiff’s claim was meritorious, and had advised the defendant to accept a proposition submitted by the plaintiff’s counsel for a settlement. Ratification results alone from what has been done or said by the person sought to be held liable, and not from what has been done or said by an agent of such person, unless, by the terms of his agency, such agent has authority to ratify, which was not shown in this case. Hence we hold that the evidence referred to was not admissible, and that it was harmful to appellant is quite obvious. In fact, it formed the basis for an appeal and argument to the jury which may account for a verdict which otherwise appears to be contrary to the great weight of the evidence.

It is insisted on behalf of appellant that the verdict in appellee’s favor is not supported by the testimony, and that this court should reverse and render judgment for appellant. The evidence tending to show ratification is meager and unsatisfactory, but we have reached the conclusion that the case should be reversed and remanded for another trial in the court below, and. it is so ordered.

Reversed and remanded.