The opinion
On Appellee’s Motion for Rehearing
Appellee complains of our ruling that no presentment was made under Art. 2226, *681 V.A.C.S., authorizing the allowance of attorneys’ fees and he has filed a supplemental transcript containing the Officer’s Return showing service on and delivery of copy of appellee’s petition to appellant on January 16, 1958.
If our order reversing and remanding this case is valid then the question of timely presentment of claim under this statute will not arise upon retrial. It was stipulated that presentment or demand for payment had been made and much more than the thirty days will have transpired since such stipulation was made when this case will he retried.
Furthermore, if a judgment differing from the one previously rendered by the Trial Court is rendered on retrial, attorneys’ fees will properly be appraised in view of such judgment and the work entailed in securing it.
Finally, however, we are of the opinion that this is not a suit on a sworn account within the meaning of Art. 2226. We quote from Meaders v. Biskamp, 316 S.W.2d 75, 78 , Texas Supreme Court:
“It has been held that a sworn account is defined according to its popular sense and applies only to transactions between persons, in which there is a sale upon one side and a purchase upon the other, whereby title to personal property passes from one to the other, and the relation of debtor and creditor is thereby created by general course of dealing (which may include only one transaction between the parties). It does not mean transactions between parties resting upon special contract.”
Reverting now to appellee’s trial petition we find these allegations:
“That on or about the 12th day of July, 1949, the Defendant entered into a written contract with said Company, whereby the Defendant was empowered to solicit and sell policies of insurance of said Company, and which said contract provided for the payment of the premiums by the Defendant to said Company. A photostatic copy of said contract is attached hereto as Exhibit ‘A’ and made a part . hereof the same as if copied in full herein and hereat.” (Pertinent portions of this contract have previously been copied.)
Clearly, it seems to us, this is a suit “resting upon special contract” and we so hold.
Appellee also complains that in holding appellant not liable for unearned, uncollected premiums we have rewritten that portion of the agency agreement requiring appellant to pay premiums on insurance written by him whether “collected or not.” Certainly this is a binding obligation just as a promissory note or other contractual promise is binding, yet if a consideration for a promise fails wholly or partially the promise or obligation is accordingly defeated. The promise to pay for insurance written by appellant does not, we believe, include a promise to pay for insurance which the company failed to deliver. Struve v. Moore, 136 S.W. 1175 , Court of Civil Appeals. See also Hudson v. Compere, 94 Tex. 449 , 61 S.W. 389 .
Appellee also contends that the pleadings are insufficient to support a defense of failure of consideration.
The form of this suit was upon a contract but purporting to be in the nature of a suit on open account. Appellant denied, in his answer, that the account sued on was not “just or true in whole or in part” and that he had not been allowed “all just and lawful offsets, payments and credits against the account” upon which suit was based.
Whether these pleadings authorized a defense of failure of consideration we need not decide. In Cretien v. Kincaid, Tex. *682 Civ.App., 84 S.W.2d 1094 , affirmed 130 Tex. 513 , 111 S.W.2d 1098 , Tex.Comm. of App., it was held that where a cause was pleaded and tried upon an erroneous theory and the rights and liabilities of the parties adjudicated on that basis, a reversal should be ordered.
We do: point out that appellee affirmatively pleaded a cancellation of policies written by appellant and thus, generally at least, pleaded failure of consideration.
The motion is overruled.
Motion overruled.