The opinion
On Rehearing.
A very careful reconsideration of both the evidence and the pleadings has convinced us that the holding in our original opinion, that issue No. 1 requested by the plaintiff was immaterial, was erroneous. That issue called for a finding by the jury as to the amount of the advancements made by appellant in the drilling of well No. 1. We construed the pleadings of appellant as limiting his right to recover any amount on account of such advancements to the contingency that profits were realized out of the drilling of that particular well. We now believe that we applied a too strict construction to the pleadings, particularly in view of the fact tha't there were no demurrers or exceptions before us challenging the sufficiency thereof. The allegation of the petition with reference to the advancements contained this language: “Por all of which he was to receive and was entitled to an accounting from the defendant, and the same was to be repaid to him out of the proceeds of said contract.” We construed that allegation as alleging that he was not to be entitled to reimbursement for advances unless there were profits realized out of “said contract.” We now think the allegation is susceptible of the construction that he was entitled to an accounting from the defendant; and that the mere allegation that advancements were to be repaid out of the proceeds of a particular contract did not necessarily negative the fact that he would be still entitled to an accounting out of future earnings, should no profits be derived from the first contract.
We perhaps also were not authorized to hold, as a matter of law, that the contract for the drilling of well No. 1 resulted in a loss. The preponderance of the evidence is in favor of that holding, but there is evidence to the contrary. McGee testified that profits were made. That testimony presented an issue of fact which required its submission by the court to the jury, even though it might be regarded as against the preponderance • of the testimony.
There is this further fact to be noticed. Issue No. 1 requested by the defendant submitted the issue whether Cunningham assumed the indebtedness on the property, together with all bills due by the partnership as the consideration for the purchase of McGee’s interest in the drilling outfit. It cannot be determined certainly that in answering that issue the jury did not classify the -advancements made by McGee as an indebtedness on the property. The evidence discloses that McGee expended money for freight, etc., when the drilling outfit was purchased. Such expenditures may have been regarded as indebtedness, and the answer of the'jury is broad enough to include such advancements as a part of the indebtedness assumed by Gunning-ham. With all of these considerations in view, we now think that it cannot be said as a matter of law that issue No. 1 requested by the plaintiff was wholly immaterial.
It being fully established by the evidence that the misconduct of the jury .entered into the answer to this issue, and it being further disclosed in the statement of facts that the answer thereto was wholly unsupported by the evidence, we are convinced that a prejudicial error is presented. The following recent authorities, not cited in the original opinion, will disclose the strictness with which the appellate courts apply and enforce the rule against misconduct in the jury room. Seale v. Schultz (Tex. Civ. App.) 3 S.W.(2d) 5 (13; St. L. S. W. Ry. Co. v. Lewis (Tex. Com. App.) 5 S.W.(2d) 765 ; St. L. S. W. Ry. Co. v. Smithhart (Tex. Civ. App.) 9 S.W.(2d) 146 ; T. & N. O. Ry. Co. v. Parry (Tex. Com. App.) 12 S.W.(2d) 997 ; Giles v. Tyson (Tex. Civ. App.) 13 S.W.(2d) 452 .
In the very recent case of McPaddin v. Hebert, 15 S.W.(2d) 213 , in an opinion answering certified questions, which was adopted by the Supreme Court, this language is used: “The courts of this state- have repeatedly held that it is error for the jury to first determine who they want to prevail in the suit and then designedly form their answers to special issues to accomplish that desire.”
The motion for rehearing will be granted, the judgment of this court affirming the judgment of the trial court will be set aside, and judgment will be entered reversing the judgment of the trial court, and remanding the cause for another trial. •