The opinion
On Motion for Rehearing.
[7] In this cause the written contracts in substance set out in our original opinion, if deemed contracts of sale, on the question of the same being condemned by our anti-trust statutes, upon a close consideration and the comparative legal effect between the same and the one considered by the Supreme Court of the state in the case of Albertype Co. v. Gust Feist Co., 102 Tex. 219 , 114 S. W. 791 , we think clearly places this cause, on that question, within the scope of that case, and not within the purview of the case of Watson Medical Co. v. Johnson et al., 162 S. W. 394 . If appellee contends that the testimony of the Locks, as to the statements made by Henderson prior to the time that the written contracts were made, brings this cause within the scope of the latter case cited, and that the contract, viewed as a whole, supplemented by this oral testimony, as the contract between the parties, is condemned by the case last cited, the answer is in the condition of this record that the testimony as to the previous statements and representations made by Henderson cannot constitute the contract between them. The rule that a written memorial which merges previous negotiations excludes such proof is for the reason that the testimony is incompetent. Wigmore says (volume 4, § 2300, subd. 1): “The rule is in no sense a rule of evidence, but a rule of substantive law. It does not exclude certain data because they are for one or another reason untrustworthy or undesirable means of evidencing some fact to be proved. * * * What the rule does is to declare that certain kinds of fact are legally ineffective in the substantive law; and this, of course (like any other ruling of substantive law), results in forbidding the fact to be proved at all.” The Supreme Court of the state, in the case of Henry et al. v. Phillips, 105 Tex. 466 , 151 S. W. 538 , with reference to a certain character of testimony in a case different in its status from the cause here, announced, however, what we believe to be the same principle, when it said: “Such incompetent testimony can never form the basis of a finding of facts in an appellate court, notwithstanding its presence in the recbrd without objection. When the appellate court comes to apply the law to testimony constituting • the facts of the case, it can only base its conclusion upon such testimony as is under the law competent. That which is not competent testimony should be given no probative force.” While we are not inclined to think the oral testimony would bring this cause within the principle of the case of Watson Medical Co. v. Johnson, supra, however, when we come to the written contract, we are clearly of that opinion.
[8] Appellants insist that the trial court committed error as ’ follows: On cross-examination of'the cashier of the bank, the witness had testified that he could not tell exactly what the bank gave Henderson for the note, but to the best óf his recollection it was an amount less about a 10 per cent, discount; that he could not testify to the exact amount without going to the book at the bank recording the purchase. Counsel for defendants asked the witness to secure the book and from it give the exact amount paid for the note. The court stated that he did not consider the amount as material and that it would take up too much time to secure the book. The president of the bank, who negotiated the purchase of the note, had testified that they had discounted the note about 10 per cent. When the bank purchased the note, whatever amount they paid for it, if they had inquired of the Locks in regard to the transaction between the latter and Henderson, the only information that the Locks could have imparted to the officers of the bank was that they had madé a cer *540 tain contract with Henderson for the purchase of certain charts and the right to purchase more to sell in certain territory, upon certain representations made by Henderson. Whether false or true, or fraudulent or not, at that time no one knew or had any means of knowing. We concede there are cases where the court could have abused his discretion in refusing to suspend or delay a case, even though a litigant has not attempted to avail himself of the proper process to obtain information from the opposite party, or to compel the production of his papers into court; but under the record here we do not think an abuse of discretion upon the real merits of the cause is exhibited.
[9] We refuse to certify.to the Supreme Court a question which we conceive has been previously decided by that court, in the case of Petri & Bro. v. National Bank, 83 Tex. 427 , 18 S. W. 752 , 29 Am. St. Rep. 657 , and again repeated in 84 Tex. 212 , 20 S. W. 777 .
The motion for rehearing is in all things overruled.