
    RAMSEY v. BIRD.
    (No. 7208.)
    (Court of Civil Appeals of Texas. Dallas.
    Nov. 14, 1914.)
    1. Continuance (§ 51) — Grounds—Intoxication of Defendant.
    Where a ease had been continued several times because of the intoxication of defendant, it was not an abuse of the court’s discretion to refuse a further continuance on the same ground, especially where defendant became sober long enough to testify in his own behalf in chief, but was too intoxicated to testify in surrebuttal.
    [Ed. Note. — For other eases, see Continuance, Cent. Dig. §§ 69, 79, 85, 87, 88, 118, 128, 130, 132, 135, 141, 147; Dec. Dig. § 51.]
    2. Appeal and Error (§ 1170) — Presenting Questions in Lower Court — Bequest for Submission of Special Issue.
    In an action for an accounting between partners who were wrecking a house, where one partner claimed damages for breach by the other of an agreement to sell a portion of the house to the former partner, who had contracted to sell it to a third person, and remove it to such person’s land, tiie failure of the court in submitting special issues as to the damages for such breach to submit the question of the cost of removing it, upon which there was substantially no conflicting evidence, was not reversible error, in the absence of a request for such submission, under Rev. St 1911, art. 1985, providing that the failure to submit an issue shall not be deemed a ground for reversal, unless its submission was requested, and that an issue not submitted and not requested shall be deemed to have been found by the court, provided there be evidence to sustain such finding.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4032, 4066, 4075, 4098, 4101, 4454, 4540-4545; Dec. Dig. § 1170.]
    3. Evidence (§ 419) — Parol Evidence — Consideration for Contract.
    In an action for a partnership accounting, where the written partnership agreement stated the consideration to be furnished by the defendant, but not that to be furnished by the plaintiff,_ parol evidence was admissible, on behalf of plaintiff, to show the consideration furnished by him, even though that question was not raised by the defendant.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1912-1928; Dee. Dig. § 419.]
    4. Damages (§ 182) — Mitigation—Breach of Contract.
    Where plaintiff sought to recover damages for a breach of an agreement to sell him a certain portion of a house which he and defendant were wrecking, and which plaintiff had agreed to sell to another and remove onto the land of the other at a certain time, evidence that the receiver of the property, who was appointed after the action commenced and more than six months after the expiration of the time fixed for the removal, offered to sell the property to plaintiff at the agreed price was inadmissible to mitigate the damages, in the absence of testimony that the plaintiff could purchase at that time, and that his buyer was still willing to accept the property at the agreed price.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 473, 500; Dec. Dig. § 182.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Action by G. W. Bird against W. S. Ramsey. Judgment for the plaintiff, and defendant appeals.
    Affirmed.
    M. M. Plowman, of Dallas, for appellant, Harmon & Harmon and Bird & Bird, all of Dallas, for appellee.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   RASBURY, J.

This is an appeal from a judgment of the court below entered upon the findings of the jury upon special issues. The suit was filed by appellee against appellant for an accounting of partnership affairs and for damages. Any statement of the evidence necessary will be made under each assignment.

The first assignment of error complains of the action of the lower court in overruling appellant’s application to continue the case. The ground upon which the continuance was sought was that appellant, who was a periodical drinker of intoxicants, was ill and in an inebriated condition and unfit mentally to testify when the case was called for trial. The bill of exception bringing into review the overruling of the-motion is qualified by the statement that the case had been repeatedly passed and continued on the ground that appellant was drunk, and that the court believed it doubtful if appellant would be found sober on any assignment of the case. The trial judge also qualified the bill by the further statement that appellant, during trial, was sober and testified in his own behalf, but before its completion “fell again,” and was unable to testify on surrebuttal. The proposition urged by appellant under tbe said assignment is tbat, under tbe facts recited, the court abused the discretion vested in him to deny or grant tbe application. In our opinion tbe proposition is unsound. Tbe application was not a statutory one, and called for tbe exercise of tbe trial judge’s sound discretion in the matter. Tbe case bad been repeatedly continued for tbe identical reasons stated in tbe application in tbe expectation tbat appellant would at tbe next recurring trial be in a state of sobriety. He was not, notwithstanding tbe tolerant and considerate indulgence in the past by tbe trial judge. Tbe repeated continuances of tbe case, in our opinion, evidence an unusually fair observance of tbe discretion vested. Certainly no facts are disclosed tbat could support a conclusion by this court tbat there was an abuse of discretion. A further and decisive reason that prevents interference on our part is that appellant did in fact attend tbe trial and did testify for himself. And while it is also true tbat during trial appellant again succumbed to bis unfortunate habit, it is obvious tbat a final settlement of litigation would in some cases never be bad if tbe latter fact was cause for reversal.

Tbe second and ninth assignments raise a question of practice. The facts necessary to tbe disposition of tbe question, as found by tbe jury and in turn supported by tbe evidence, are these: Tbe partnership in which appellant and appellee were associated bad for its particular purpose tbe moving and sale of an old bouse, which tbe partners had purchased under an agreement unnecessary to detail here. Certain portions of tbe structure were desired by each partner, and it was finally agreed tbat appellee should pay tbe firm $300 for the portion desired by him. Appellee in turn sold tbe portion so purchased by him to one Kreck for $900 delivered upon Kreck’s land. At tbe time agreed upon for the payment of tbe $300, appellant declined, as a member of tbe firm, to accept the amount, and prevented appellee removing tbe portion of tbe bouse bought by appellee upon Kreck’s land as be bad agreed to do. Tbe damages sought by appellee were those caused by appellant’s action just detailed, which were alleged to be tbe difference between tbe price agreed to be paid for tbe portion of the bouse bought by appellee and tbe price at which appellee sold to Kreck, less the cost of removing tbe same upon Kreck’s land. Tbe only testimony upon what it would have cost appellee to remove tbe portion of the bouse bought by him upon Kreck’s land was that of two witnesses, one testifying that it would cost $150, and another tbat it would cost $150, maybe $200. In submitting tbe case to tbe jury upon tbe issue of damages, the trial judge required tbe jury to find specifically all tbe facts just related, but did not interrogate them as to what it would have cost appellee to have removed tbe bouse to Kreck’s land, bad be not been prevented from doing so by appellant, but determined that issue himself in entering judgment upon tbe special verdict. Tbe proposition urged by appellant is tbat tbe trial judge, in submitting to the jury tbe question of damages claimed by appellee, should also have required tbe jury to say what would have been the cost of removing the portion of tbe bouse bought by appellee upon Kreck’s land, and, the jury not having passed upon that issue, tbe court was without authority to determine it. Tbe contention cannot be sustained. Since 1897 tbe rule with reference to special verdicts has been, as relates to tbe issue under discussion, that “tbe failure to submit any issue shall not be deemed a ground for reversal of tbe judgment upon appeal or writ of error, unless its submission has been requested in writing by tbe party complaining of tbe judgment,” and tbat, “upon appeal or writ of error, an issue not submitted and not requested by a party to tbe case shall be deemed as found by the court in such manner as to support the judgment, provided there be evidence to sustain such a finding. Acts 1897, p. 15, c. 7; article 1985, R. S. 1911. Thus it is seen tbat tbe only inquiry properly to be made by this court is whether tbe finding by tbe court below is sustained by tbe evidence. On tbat point there can be no dispute, since, as we have said, but two witnesses testified, one tbat tbe expense necessary to remove tbe portion of the bouse described was $150, tbe other “$150, or maybe $200.” It is not necessary for us to demonstrate by mathematical process that tbe amount of tbe judgment for damages entered upon tbe special verdict is correct, since no issue is made upon tbe amount of tbe verdict, but upon tbe action of tbe court in determining tbe issue of ■ fact we have detailed. This tbe court clearly has tbe right to do under the statute, when tbe parties to tbe suit have failed to request tbe submission of such issue, even though tbe evidence on tbe point not submitted is conflicting Tbe testimony in the instant case was without practical or real conflict.

Tbe third assignment of error complains of tbe action of tbe court in referring to tbe jury tbe ascertainment of tbe true consideration of the contract between appellee and appellant; the proposition being that such evidence was an attempt to vary or contradict tbe legal effect of a written instrument by parol evidence. Tbe contract signed by appellant and appellee, which was offered in evidence and is contained in tbe record recited tbe purpose to be tbe purchase, wrecking, and sale of a building, appellant furnishing tbe purchase price, whiék was to be refunded him from tbe proceeds of tbe sale of the building, any balance to be divided equally between tbe parties, after deducting all expense incident to dismantling tbe building, etc., together with other provisions not material to the point under discussion. The contract was silent concerning the consideration contributed by appellee, which would entitle him to share in the profit derived from the sale of the building, and it was alleged by ap-pellee and found by the jury and supported by the evidence that the original contract was verbal, hut reduced subsequently to writing, and that the consideration moving to appellant and inducing him to contribute all the necessary funds to the enterprise and divide the profits equally with appellee was the skill, knowledge, and experience of the latter in dismantling or wrecking such building in a profitable manner. And it occurs to us that in order to anticipate any claim of a total want of consideration, and for the purpose of showing the true consideration, it was proper for him to allege and prove same. For as well settled as the rule that the legal effect of a written instrument may not be varied or contradicted by parol testimony is the further rule that holds that parol evidence is admissible to show the true consideration of a written agreement, conveyance, etc., even in cases where the true consideration is variant to that recited in the instrument in writing. The citation of authority in support of either rule is unnecessary. Such is what was done in the instant case, and it occurs to us that it is immaterial how the question was raised, whether by appellee, as he voluntarily appears to have dóne, or by appellant, by a denial of partnership and the contention that appellee was by the contract but an employé.

The tenth assignment of error complains of the refusal of the court to permit appellant to prove by Franklin, who was appointed receiver of the partnership property pending the litigation, that, after getting possession of the property, he offered to sell appellee the portion he was to have for $300, and that appellee repeatedly refused to purchase same. The proposition asserted under said assignment is in effect that, when appellant breached his contract, it was appellee’s duty, in order to lessen the damages caused by such breach, to purchase the property from any other source available. Much necessarily has been written concerning the rule of law for the recovery of damages, but the general purpose and policy of the law finally is to afford the injured person compensation for the injury suffered. Incidental to the right to recover such compensation it becomes, in many cases, the duty of the injured party to lessen the damages by taking such steps in that respect as would be observed by an ordinarily prudent person similarly situated. Do the facts recited in the bill of exception bring appellee’s suit within the variation of the general rule of compensation? We think not. Appellant unlawfully prevented appellee from removing the portion of the building bought by the latter from the partnership, and it is in effect undisputed that his damage resulting therefrom was the amount recovered. The mere offer by the receiver to sell appellee the property is not enough to invoke the rule. Appellee’s contract with Kreck, according to the testimony, was to be concluded the latter part of December, 1911. The receiver went into possession of the property June 25, 1912, more than six months after appellee had agreed to deliver the property to Kreck. This testimony was clearly insufficient to raise the issue that appellee had failed to exercise ordinary care to lessen the damage. Aside from the question of the lapse of so much time, it devolved upon appellant to show, not only that appellee could have purchased the house at the same price, but to show also that Kreck was yet willing to pay the price originally agreed upon, and that appellee was able to purchase at such time.

Finding no reversible error in the record, the judgment is affirmed.  