The opinion
On Rehearing.
All parties have filed motions for rehearing. Our observations shall not be directed specifically to any particular motion.
It is suggested that in our original opinion we indicated the view that the form of the issue in Knox v. Brown (Tex.Com.App.) 16 S.W.(2d) 262 , is not applicable to this case, without sufficiently setting forth the reasons for such statement. In the Knox Case the contract was a written contract. All terms of the contract were in writing. The nature of the written contract, i. e., whether a deed or a mortgage, was wholly dependent upon, and determinable by, the fact of intention. If intended by the parties as a deed it was a deed, and if intended as a mortgage it was a mortgage.
In the instant case the real issue was: Did the parties make the contract alleged? If they made the contract alleged, it was a parol contract. It was provided in that alleged contract that there should be certain written instruments. Execution of such written instrument's was rather a part performance of the contract than a part of the contract itself. If there was any such contract as the one alleged, the written instruments did not express the contract, were not intended by any of the parties to express the contract, but on the con'trary, their function was to disguise and conceal the real contract. If the contract was as alleged by the plaintiff, the law would declare the written instruments to be a mortgage. It was not. necessary for any of the parties to have a specific intent that the written instruments were to be mortgages or deeds and an option, since the essential and controlling intention was in *424 volved in the question of whether there was any such contract made as that alleged by the plaintiff. It is true that, if the alleged contract was made, there could not have .existed understanding^ an intention that the instruments were to be what, upon their face, they purported to be, and not a mortgage, because that would demonstrate conclusively that the parties made no such contract as plaintiff claimed. But to submit as the only issue the question of the parties’ indention as to the nature of the written instruments was bút to submit an evi-dentiary fact, leaving the real issue a matter of inference. We sustained the submission of the issue in the form it was stated upon the view that it was an attempted submission of the real issue, the form of which, not being objected to it, was to be treated as a correct submission. Duff v. Roeser & Pendleton (Tex.Civ.App.) 96 S.W.(2d) 682 .
The several motions for rehearing demonstrate the likelihood of misunderstanding and error resulting from the submission of a special issue in such form as to call for the finding-of a mere evidentiary fact. It is earnestly contended that De Loach made such admissions regarding the written instruments as to preclude recovery by plaintiff as a matter of law. It must be admitted that his evidence was very unsatisfactory, but it must be borne in mind that, according to plaintiff’s theory of recovery, the written’ instruments were to show upon their face a valid transaction. Evidence of acts and conduct in the nature of efforts to meet requirements to make them so show was not inconsistent with the existence of the contract alleged. The same is true of the references made by the witness to the instruments as though they were what they purported to be. Hence, De Loach having testified to facts supporting his contention as to the making of a usurious contract, his other testimony, which it is insisted as a matter of law conclusively showed the contrary, at most created such an uncertainty as to the entire purport of his testimony as to make an issue for the decision of the jury.
The contention to the effect that the rule forbidding parol evidence to vary the terms of a written contract is applicable in the decision of this case seems to us to grow out of the same failure to recognize the real issue involved. If usury existed, it was -by virtue of a contract. It makes no difference how much compensation is paid for the use of money, unless the promise to pay is a contractual obligation. This question this court had occasion to consider and determine in Continental Sav. & Bldg. Ass’n v. Wood (Tex.Civ.App.) 33 S.W.(2d) 770 . If the contention were correct that the parol evidence rule is applicable to a case like this, then a claim of usury never could be predicated on a written contract, unless the contract was usurious on its face. As said above, the contract alleged by plaintiff was parol. The written instruments were only incidents. Plaintiff was entitled if he could to prove the contract alleged, and to do so it was necessary to contradict the written instruments. If there was a usurious contract as alleged by plaintiff, in no other way could the purpose to conceal it by apparently valid instruments be avoided. Just as certainly, we think, as that a contract partly in writing may indirectly provide for the payment of usurious interest by reason of which the Constitution and laws give a remedy, just so certainly does the right to prove the terms of the real contract exist.
Traceable, we think, to the same misconception of the real issue involved, is the contention of the Argo Royalty Company to the effect that, conceding that some of the parties intended the instruments to be mortgages, there was no evidence to show that the Argo Royalty Company shared such intent. Upon that point a better showing is made, we think, with reference to the issue in the form it was submitted than could have been made with reference to the issue properly stated. If the alleged contract was made, then we think there was such evidence relating to the dealing of the defendants among themselves and with the plaintiff as to warrant an inference that the Argo Royalty Company was a party to the contract. That, after all, is the real question sought to be presented by the contention that there was no evidence to show that the Argo Royalty Company, as distinguished from the other defendants, intended the written instruments to be a mortgage rather than what they purported to be.
Being unconvinced of any error in our decision, the several motions for rehearing will be overruled.