Another v. Davenport

• Decision Date: 01 January 1855
• Citation: 14 Tex. 602
• Parties: ROCKMORE AND ANOTHER v. DAVENPORT.
• Court: Texas Supreme Court

14 Tex. 602

ROCKMORE AND ANOTHER

v.DAVENPORT.

Supreme Court of Texas.

1855.

Where a bill payable at a day certain is presented for acceptance and dishonored, the payee may sue the drawer immediately; and a plea by the latter setting up an oral agreement, made previous to or contemporaneous with the drawing of the bill, that the drawer should not be liable to pay the amount of the bill until the time stipulated, is bad, for the reason that it proposes to vary by oral evidence the legal effect of a contract in writing.

Where the bill was payable in another State, and there was no allegation as to the rate of interest, and the verdict and judgment were for a certain amount, ““principal and interest,” and the amount was less than the sum for which payment was stipulated in the bill, and there was no statement of facts, the court refused to disturb the judgment.

Error from Panola. Suit by the defendant in error against the plaintiffs in error on a bill of exchange which was drawn and payable in Louisiana and protested for non-payment. The bill was payable on the 1st of March, 1854, and was sued before that time. The defendants pleaded that it was orally agreed at the time of drawing the bill, between the drawers and the payee, the plaintiff, that in no event should they be called upon to pay the amount mentioned in the bill before the said 1st day of March, 1854. Said plea was stricken out on motion of the plaintiff. Verdict and judgment for certain amount, principal and interest. The amount was less than the principal sum ordered to be paid. No statement of facts.Bowdon & Chilton, for plaintiffs in error.

I. The verdict and judgment entry show conclusively that interest was recovered. This is an error which the court will correct even in the absence of a statement of facts. (Able v. McMurray, 10 Tex. R., 350.) Attention is specially invited to the judgment entry to show the allowance of interest, lest it might be inferred from the amount of the judgment none was allowed.

II. The plea is not obnoxious to the objection that it seeks to vary the written contract by a contemporaneous parol stipulation. The real contract between these parties is not sought to be set out in the writing or draft. It was in reference to the purchase of a mill, and the draft was drawn in payment on certain conditions, but with an express understanding that defendants were not to pay anything to plaintiff until March, 1854.

The draft failed to answer the purpose for which it was intended, but the real contract remained unimpaired, of which the draft was not the evidence. Had the draft been accepted, it would have been (not the contract sued on but) a written contract of a different character, between different parties, on which the parol agreement sought to be set up in this case could have had no effect. The authorities on this subject seem to be conclusive. (Murchin v. Cook & McNab, 1 Ala. R., 42; Simonton v. Steel, Id., 357; Honeycutt v. Strother, 2 Id., 135; Barlow v. Fleming, 6 Id., 146.)

The effect of the parol stipulations in this case was not to vary the terms of the draft falling due in March, 1854, but to prevent the plaintiff in any event from seeking pay for the mill from defendants before the term of credit had transpired.

In the January No. (1855) of Livingston's Law Magazine, p. 22, is reported a very able decision, maintaining very conclusively that “an agreement not to sue during a certain specified time does not merely give a claim for damages in case of its breach, but constitutes a bar to any action during that time.” (Robinson v. Godfrey, 2 Mich. R., 408.)

Poag and Henderson & Jones, for defendant in error.

WHEELER, J.

It is insisted for the plaintiffs in error that the court erred in adjudging the plea insufficient which sets up a contemporaneous parol agreement to give credit upon the indebtedness evidenced by the bill of exchange sued on until the 1st of March, 1854. Cases are cited where it has been held that parol evidence is admissible to prove an agreement at the time of making a note that it might be discharged in a particular way other than by the payment of money expressed in the note. (1 Ala., 41, 357, and other cases cited in brief.) But these cases proceed upon the ground that such an agreement does not contradict or vary the terms of the written contract. (Ib.) A case is cited also to show that an agreement not to sue for a specific time is binding. (2 Mich. R., 408.) This is undoubtedly true if the agreement be upon a sufficient consideration. (Ib., and cases cited.) But this is to be understood of a subsequent not of an antecedent or contemporaneous agreement. (1 Greenl. Ev., secs. 303, 304.) And whether such an agreement will preclude the right to sue during the enlarged time of performance given by it, or will only give a right to recover damages for its breach, is a question upon which the authorities are conflicting. The case cited maintains the former opinion. But the current authority is admitted to be the other way. The general rule, subject to a few exceptions not applicable to the present case, undoubtedly is that parol evidence cannot be received to contradict or vary a written agreement. (2 Phil. Ev., 357, 358, 6th Am. from 9th London ed.) And this rule operates to the exclusion of parol evidence of any prior or contemporaneous agreement to vary the terms or legal effect of the written contract. These cases which illustrate and enforce the rule are...