This suit wаs instituted by tbe bank against Stone to recover upon a promissory note executed by tbe latter, and payable to tbe Plаnters’ Bonded Warehouse Company, wbicb bad assigned it to tbe bank. The note, given in payment of stock to be issued to Stone, by tbe company, was executed on February S, 1921, and by its terms was made payable on October 1, 1921. Stone sought to defeat tbe note upon the grounds: (1) That at the time it was executed it was understood by tbe parties thereto, with tbe bank’s knowledge, that it would not “become due and payable” until tbe warehouse company built á warehouse in the town of De-vine ; (2) that it was placed in escrow to bе delivered upon tbe condition, known to the bank, that it would not become a binding obligation upon tbe maker unless and until tbe warehouse was built; and (3) that, with tbe bank’s knowledge, it was given in consideration of stock in tbe company and of tbe company’s agreemеnt to construct tbe warehouse, but tbe company bad become insolvent and defunct and had not built .the warehouse, or issued tbе stock, whereby tbe consideration hád failed. Tbe bank sought to avoid these defenses by showing that it was an innocent purchaser of tbe note 4n good faith, for value and without notice. Tbe cause was submitted upon two special issues: First, was tbe note exeсuted and delivered with an understanding and agreement between tbe parties thereto that it was not to become due or pаyable until tbe warehouse was built? And, second, did tbe bank have notice of this condition? Upon affirmative answers of the jury to both issues, tbe court rendered judgment denying recovery to tbe bank, which has appealed.
This is the second appeal in tbe cause. Stone v. Bank,
We cоnclude that tbe evidence upon the last trial raises only two defenses upon which appellee could escaрe liability upon tbe note sued on: First, that the note was placed in escrow to be delivered and became binding on tbe maker when, and only in tbe event, tbe warehouse company erected tbe promised warehouse; and, second, that tbe notе was given in consideration, in part, of tbe promise to erect tbe warehouse, and there was a failure of this consideration. Tbe failure of tbe company to build tbe warehouse would operate as a defense in either of these events, рrovided, of course, there is a supported finding of tbe jury that the bank purchased tbe note with notice of tbe conditions mentioned.
But neither of these issues was submitted to the jurj7. Each of them was a controlling issue, and therefore neither will be resolved by presumption in support of tbe judgment, as would be tbe case bad tbe issue been of an evidentiary fact necessary to sustain a finding upon an ultimate issue. They were issues going to tbe very foundation of tbe case, and cannot be resolved by presumptive findings, at leаst in tbe face oí conflicting testimony. These matters were of a purely defensive nature, and it devolved upon tbe party urging thеm to secure affirmative findings of tbe jury thereon in order to entitle Mm to judgment. Kirby Lumber Co. v. Conn,
Tbe only issue submitted to tbe jury was that of whether, with tbe knоwledge of the bank’s officials, appellee executed tbe note “with tbe understanding or agreement with” tbe warehouse сompany’s agent “that said note was not to become due or payable until” tbe company bad “completed tbe building оf tbe warehouse in tbe town of Devine.” This finding is not sufficient within itself to warrant a judgment rescinding tbe contract, absolute on its face, to рay tbe amount of tbe obligation. To give tbe finding this effect would be in direct contravention of tbe rule against tbe contradiction of a written instrument by parol evidence. 3 R. C. L. 910; Walters v. Byers Bros. & Co. (Tex. Civ. App.)
By inference appellee appears to concеde that a contemporaneous Tarol agreement between tbe parties to tbe note, that tbe actual maturity of tbe obligation be postponed until the warehouse was built, cannot be urged against tbe plain terms of tbe in *991 strument. To avoid the еffect of this concession, appellee declares that “the real issue before the jury was whether appellee had made a conditional delivery of, the note with the understanding that it was to be returned to him if the warehouse was not built,” and “that it wаs this issue that the court undertook to submit to the jury, and this is really the question that was passed on by the jury.” But we cannot subscribe to this theory. An agrеement to postpone the time of payment of a delivered promissory note is very different from a conditional delivery, or an es-. crow agreement. The issues are so different in fact that the first constitutes no defense, while the others do.
Other questions are presented in the appeal; but it- is not deemed necessary, in view of another trial, to 'discuss them in detail. We will say, generally^ that the evidence complained of in appellant’s seventh and eleventh propositions was not admissible in the face of the objections interposed thereto. The testimony complained of by appellant in his eighth and ninth propositions was admissible in explanation of testimony brought out by appellant, but the evidence complained of in the tenth proрosition was primarily inadmissible, at least in the absence of appropriate pleadings, although appellant’s objеctions were perhaps waived by his conduct in eliciting similar testimony. Appellant’s eleventh and twelfth propositions are briefed together, but will not be passed on for the reason that the testimony complained of is not set out suffifciently to disclose its nаture. The special charge complained of in appellant’s thirteenth proposition is correct in principle, and we cannot say that it was improperly given in this case.
For the reasons discussed, the judgment must be reversed, and the cause remanded.