
    GORDON v. RATLIFF et al.
    (No. 5292.)
    (Court of Civil Appeals of Texas. Austin.
    March 11, 1914.
    Rehearing Denied June 10, 1914.)
    1. Trial (§ 251) — Instructions—Conformity to Issues.
    In replevin, where defendant set up as a counterclaim plaintiff’s breach of a construction contract, but did not allege plaintiff’s conversion of material deposited on the lot where the building was to be erected, the submission to the jury of the question whether plaintiff was liable for the conversion was erroneous.
    (Ed. Note. — For other cases, see Tidal, Cent. Dig. §§ 587-595; Dec. Dig. § 251.]
    2. Pleading (§ 127)— Construction.
    Where plaintiff generally denied defendant’s cross-petition, which though alleging defendant deposited material on plaintiff’s premises did not charge a conversion, the filing of a ’special plea, alleging that plaintiff purchased the material, is not an admission against interest authorizing recovery by defendant for the conversion.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 264r-268; Dec. Dig. § 127.]
    3. Appeal and Error (§ 1173) — Determination — Reversal.
    In replevin against two defendants, one of whom counterclaimed for breach of contract, a judgment for both will be reversed and remanded, when an improper issue on the counterclaim was submitted and the rights of the parties to the goods replevined depended upon the determination of the issues raised by the counterclaim.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4562-4572, 4656; Dec. Dig. § 1173.]
    Appeal from Brown County Court; Frank H. Sweet, Judge.
    Action by E. B. Gordon against Arch Ratliff and one Coker, who counterclaimed. From a judgment for defendants, plaintiff appeals.
    Reversed and remanded.
    W. D. Gordon and Thos. J. Baten, both of Beaumont, and I. J. Rice, of Brownwood, for appellant. Arch Grimman and Harrison & Wayman, all of Brownwood, for appellees.
    
      
       For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   KEY, C. J.

This is the second appeal in this ease, and we refer to our former opinion for a statement of the nature of the suit. Ratliff v. Gordon, 149 S. W. 196. At the last trial the jury found against the plaintiff, Gordon, upon his suit to recover the wagon and team, and found in favor of the defendant, Coker, on his cross-action against the plaintiff for $451, and the plaintiff, Gordon, has appealed.

In his cross-action Coker sought to recover from Gordon the profits which he alleged he would have made if he had not been prevented by Gordon from performing his part of the contract between him and •Gordon, by which he agreed to furnish the material and construct the stone walls of a ■certain building for Gordon. He did not allege that he had sold any material to Gordon to be paid for by the latter, regardless of whether the building was constructed; nor did he allege that Gordon had converted any of the material to his own use. In submitting the cross-action to the jury the trial court instructed them, in substance, that if they found that there was a contract between Gordon and Coker, and that in pursuance thereof Coker delivered any of the material to Gordon on the lot where the building was to be erected, and Gordon refused to allow Coker to proceed with the construction of the building and failed and refused to comply with his contract, to find for Coker the reasonable value of the material so furnished by him to Gordon. Error is assigned upon that portion of the charge for the reason that Coker had sued appellant for the profits he would have made if he had been permitted to perform his part of the contract, and he did not allege that Gordon had either purchased or converted any of the material which Coker had placed upon the lot, and intended to use in the construction of the building, and we sustain that assignment. The plea asserting the cross-action is as stated by counsel for appellant, and, while it alleges that Coker had delivered certain material to Gordon on the lot where the building was to be constructed, it does not allege that Gordon promised to pay for the material, or that he had converted it to his own use. The substance of the plea is that, for an agreed consideration of $1,000, Coker was to furnish the material and construct stone walls for the building of certain dimensions on a certain lot in the town of Brownwood, and that, although Coker was able and willing to perform his part of the contract, he was prevented from doing so by Gordon, and had therefore lost the profit which he would have made, as stated in the pleading. It is true that the plea alleged that Coker had delivered certain specified material of certain specified valúes upon the lot where the building was to have been erected; but the allegation that it was so delivered to Gordon did not show that he had become liable to pay for the value of that material. If he was liable at all, it is for the breach of his "contract, and the measure of the plaintiff’s damage was the profit he would have made if there had been no breach. Of course, if Gordon converted to his own use any of the plaintiff’s material which he had placed upon the lot, the plaintiff might have the right, upon a proper plea, to recover the value of the property so converted. And also a similar right would exist if any of the material was sold to Gordon and has not been paid for. But Coker’s pleading failed to allege either a sale or conversion, and therefore he was not entitled to recover for the value of the material; and this is especially true as to the 7,000 feet of lumber which he alleged he had delivered upon the lot, and which it seems was no part of the material to be used by Mm in tbe construction of tbe walls of tbe building. According to tbe aver-ments in bis pleading, be only undertook to construct the walls, and yet be alleged and submitted testimony tending to prove that he delivered upon tbe lot 7,000 feet of lumber of the value of $175, but be did not allege that Gordon bad ever agreed to pay him for tbe lumber, or that be bad converted it to his own use. It is true that Gordon alleged in bis answer to Coker’s cross-action that he had bought from Coker all tbe material referred to, and had paid him for it, but be also filed a general denial, and therefore tbe averment referred to in his special answer cannot be considered in aid of Coker’s pleading, as an admission against Gordon. Bauman v. Chambers, 91 Tex. 108, 41 S. W. 471. This is tbe only reversible error pointed out in appellant’s brief. No doubt Coker will replead and thereby obviate some of tbe objections urged against bis pleading.

The appellee, Ratliff, insists that the case should be affirmed as between him' and appellant, Gordon, even though it be reversed as between Gordon and Coker; but we are of opinion that the entire case should be reversed and sent back for another trial. The wagon and mules which Gordon sought to recover from Ratliff bad been sold to the latter by Coker. Coker alleged and testified that be and Gordon had made the contract above referred to, and that Gordon had sold in the wagon and mules in part payment upon that contract. Gordon denied the existence of any such contract, and testified that he had never sold the wagon and mules to Coker, but bad merely loaned them to him. Upon that vital issue the testimony was in sharp conflict, and the rights of both Ratliff and Gordon depend upon whether the contract and transactions between Gordon and Coker were as stated by Coker; and therefore we think it would be more in harmony with justice to have that issue finally tried but once, and let tbe rights of all tbe parties depend upon the result of sueb final trial.

Reversed and remanded.  