The opinion
On Motion for Rehearing.
BOYCE, J.
[3]
It is urged in the motion for rehearing that the parties to the contract in question, by their actions, put a practical construction on it which is in accordance with that now insisted upon by appellants, and should be bound by such practical construction acted upon by' the parties. We doubt whether the assignments presented entitle appellant to make this contention, as these assignments complain of error as to the admission of parol evidence, and the construction of the contract by the court, on the ground that the language of
the contract
itself is plain and unambiguous, and the assignments contain no reference to evidence as to practical construction put upon it by the acts of the parties. However, we have examined the record, and find that the evidence of the witness Decker, as to acts done by the parties as practically construing the contract in support of appellant’s position, is contradicted by the evidence of the witnesses Chalk and Luckett, and any issue as to practical construction of the parties would have become one of fact. The record presents the same conflict of evidence as to notice to the defendants of the requirements of the railway
company
as to right of way across the Hale tract of land.
[4]
On oral argument of the motion for rehearing it was suggested that there was fundamental error in considering any question of ambiguity in the contract, because there was no pleading by the defendants of such ambiguity. If there is any ambiguity in the contract, it is apparent on its face. The plaintiff had the burden of bringing the facts relied upon by it for recovery within the terms of the contract, and we doubt whether it would have been necessary for the defendant to have specially pleaded the ambiguity under such, circumstances. 13 0. J. p. 716, and authorities. What was said by the court in the case of Morgan v. Turner, 4 Tex. Civ. App. 192 , 23 S. W. 287 , is not necessarily opposed to this conclusion. But no objection was made to the introduction of the evidence because of lack of special pleading, and the case was fully developed and tried on the theory that the defendants, under. the general denial, could show that the facts relied on by plaintiff did not impose any liability under the terms of the very contract relied on by the plaintiff itself. The judgment on its face is consistent with the pleading, so we do not think the question could at any rate be considered as presenting fundamental error apparent of record;
The motion for rehearing will be overruled.