McCLOUD, Chief Justice.
On January 27, 1976, we entered an order withdrawing our previous opinions and judgment entered in this cause. The following opinion is substituted therefor.
H. N. Orr and wife, Janet Orr, sued Kenneth A. Wirtz and wife, Dorothy Wirtz, on a written contract dated June 30, 1972, for the sale and exchange of property. Defendants owned a farm in the State of Missouri and H. N. Orr owned an apartment complex in Dallas, Texas. After the exchange of properties plaintiffs filed the instant suit alleging they were due more monies out of the closing than they received, and also, there should have been more silage located on the Missouri farm than was actually there.
The jury found in favor of plaintiffs as to the shortage of funds at closing and found against plaintiffs as to the shortage of silage. Judgment was entered accordingly. Defendants, Kenneth and Dorothy Wirtz, have appealed. Default judgment was rendered against Ellis Spitz and he has not appealed.
Plaintiffs contend the June 30, 1972 contract is not ambiguous. We disagree. The contract provides that defendants
This is the only mention in the contract of the $75,000.00 loan. We cannot tell from the contract who was going to loan money to whom, under what terms or for what purposes.
The contract provides further:
By securing said loan for the benefit of second parties, first parties shall then convey the Cass County, Missouri, property subject to said loan and second parties shall assume and agree to pay said loan. Should first parties fail to secure a commitment for said loan, within a period of 30 days from the date of this agreement, then first parties shall secure a loan from the Citizens Bank of Windsor, Windsor, Missouri, for which they now represent that they have a commitment in the amount of $48,452.84, and said loan proceeds shall be distributed in the same manner as hereinbefore set forth for the distribution of the proceeds of the loan except there will be no distribution to second parties."
The court properly permitted oral testimony as to the intent of the parties. Defendants showed that a prior written contract dated May 23, 1972, signed by defendants, H. N. Orr, and his former wife, Dell Rose Orr, was made contingent upon Orr's getting a $75,000 loan on the farm or alternatively Kenneth Wirtz "carring a loan until the loan can be obtained". This contract further provided, "The difference in equities will be carried back buy Kenneth Wirtz, on the farm." The contract makes no mention of the purpose of the loan and fails to mention an outstanding indebtedness of $9,547.16 on the silo.
It is undisputed, however, that at the time the May 23, 1972 contract was signed, the difference in equity passing from Orr to defendants was to be $18,000. In attempting to consummate the contract, Orr applied to the Federal Land Bank for a $75,000 loan and signed a written instrument acknowledging the breakdown of the loan as follows:
The remainder of Loan will go to H. N. Orr in cash."
The Federal Land Bank did not make the loan and the parties continued to negotiate. A second contract form was prepared but rejected by all parties. Finally on June 30, 1972, the contract sued on by plaintiffs, was executed by H. N. Orr and defendants.
Two days later the parties closed the transfer of the Dallas property. The title company prepared a closing statement. Orr executed the closing statement, the deed to the realty, and the bill of sale of the personalty. Orr received $7,461.07 from the title company. The closing statements on the Missouri property had not been prepared at the time of the Dallas closing. Orr refused to sign these closing statements contending he was entitled to more money.
Plaintiffs contend defendants were to assume the mortgage on the property they received and were to loan plaintiffs $75,000. Plaintiffs urge they did not "receive full consideration due from the $75,000". They assert the property was to be exchanged without an $18,000 equity difference and Orr was not to assume the silo mortgage without additional compensation. Defendants argue plaintiff failed to credit (1) $18,000 equity difference to defendants, (2) $4,285.11 credit allowed by defendants on plaintiffs' debt obligation, and (3) $9,547.16 silo mortgage. Defendants point out that such credits, if allowed, offset the claims made by plaintiffs.
Defendants alleged and contend the contract relied upon by plaintiffs is ambiguous. The court submitted the following issues:
Do you find from a preponderance of the evidence that under the contract between the parties at the time of the exchange of properties, that Norman Orr was not to pay a difference of $18,000 to Kenneth A. Wirtz? (Emphasis added)
In answering the preceding Issue, you are not to take into consideration any other credits or charges other than the $18,000 inquired about.
Do you find from a preponderance of the evidence that under the contract between the parties at the time of the exchange of properties that Kenneth Wirtz became obligated to Norman Orr in an amount equal to the silo mortgage when Wirtz conveyed the silo to Orr subject to the outstanding mortgage? (Emphasis added)
Defendants argue that the submission of these issues constitutes reversible error because they ask the jury a question of law as to the legal effect of the contract rather than asking the jury to resolve the question of the intent of the parties. We agree. Special issues 1 and 3, as submitted, ask the jury for the construction or meaning of the contract, and in fact both issues use the phrase "under the contract".
The court in Kemper v. Police & Firemen's Ins., 48 S.W.2d 254 (Tex.Com.App. — 1932), said:
The intent of the parties should have been submitted to the jury. In Trinity Universal Insurance Company v. Ponsford Brothers, 423 S.W.2d 571 (Tex.1968), the court stated:
See also Burgess v. Sylvester, 143 Tex. 25, 182 S.W.2d 358 (1944); Schoenberg v. Forrest, 228 S.W.2d 556 (Tex.Civ.App. — San Antonio 1950, writ ref. n. r. e.); Cain v. Tennessee-Louisiana Oil Company, 382 S.W.2d 794 (Tex.Civ.App. — Tyler 1964, aff'd 400 S.W.2d 318 (Tex.1966); Totten v. Houghton, 2 S.W.2d 530 (Tex.Civ.App. — Eastland 1927, no writ).
Plaintiffs contend special issues 1 and 3 are inferential rebuttal issues and defendants had the burden of requesting proper issues. We disagree. An inferential rebuttal issue, which should not be submitted under Rule 277, T.R.C.P., is one which disproves the existence of an essential element submitted in another issue. G. Hodges, Special Issue Submission in Texas 40 (1959).
Defendants properly objected to the submission of issues 1 and 3. The June 30, 1972 contract is ambiguous and the Orrs, as plaintiffs, had the burden of requesting proper issues. Skelly Oil Company v. Archer, 163 Tex. 336, 356 S.W.2d 774 (Tex.1961); Neece v. A. A. A. Realty Co., 159 Tex. 403, 322 S.W.2d 597 (Tex.1959). The defendants were required to properly object to the issues, but they were not required to request the submission of the issues in substantially correct form. Rule 279, T.R.C.P.
Defendants have urged certain points which they contend entitle them to a rendition of judgment. We have considered such points and they are overruled.
Rule 434, T.R.C.P. was amended effective January 1, 1976, to permit partial remands and partial retrials when the error affects a part only of the matter in controversy and such part is clearly separable without unfairness to the parties. In our opinion, the shortage of silage issue has been correctly tried and need not be tried again. Huffington v. Upchurch, Tex., 532 S.W.2d 576, Vol. 19, Texas Supreme Court Journal, No. 17, January 24, 1976. The jury found in favor of defendants on the shortage of silage issue and plaintiffs in no way informed the trial court of their dissatisfaction with the judgment entered. They at no time filed a cross-point asserting any error. The error in the instant case affects only that part of the controversy involving the amount of money plaintiffs were to receive as a result of the transaction.
The judgment of the trial court is affirmed in all respects as to Ellis Spitz who has not appealed. We affirm that part of the judgment which denied plaintiffs any recovery for an alleged shortage of silage. The judgment is in all other respects reversed and remanded.