Chalk v. Daggett

Citation204 S.W. 1057
Decision Date06 April 1918
Docket Number(No. 8832.)
PartiesCHALK et ux. v. DAGGETT.
CourtCourt of Appeals of Texas

Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.

Action by John P. Daggett against J. W. Chalk and wife. Peremptory instruction for plaintiff, and defendants appeal. Judgment affirmed in part and reversed in part, and cause remanded.

T. T. Bouldin, of Matador, and Bradley & Burns and A. W. Christian, all of Ft. Worth, for appellants. Bryan, Stone & Wade, of Ft. Worth, for appellee.


The appellee sought to recover upon two promissory notes executed by J. W. Chalk. One was executed on March 29, 1916, for $2,800. The other was for the sum of $5,069.17 executed on the 20th of December, 1915. Appellee sought to recover the whole of the $2,800 note and the balance alleged to be due upon the other note. The appellee also sought to foreclose a mortgage or trust deed lien upon a section of land in one of the Panhandle counties, which it was alleged had been given to secure the sums sued for.

As developed by the pleadings, stated in substance, J. W. Chalk defended on the ground that the $2,800 note and the trust deed made to secure the same had been executed in order to enable appellee thereby to secure money to discharge a certain judgment against the two, and that the trust deed had been by its terms made to include the balance due upon the $5,069.17 note; that in 1912 and prior and subsequent thereto appellee and J. W. Chalk had been doing business as a cattle commission firm buying and selling stock, loaning moneys, etc., and that there had never been any accounting between the parties, and that at the time of the execution of the $2,800 note and trust deed appellee agreed that an accounting should thereafter be had between them and that J. W. Chalk be allowed credits for all that might be due him upon both notes. As alleged, in substance, said credits would exceed the amount of the notes. The appellant Mary E. Chalk, wife of appellant J. W. Chalk, was made a party, and she pleaded that the section of the land upon which the trust deed was made to operate was her separate property and also her homestead. Upon the conclusion of the evidence the court gave a peremptory instruction to the jury in appellee's favor, and appellants have appealed.

We fail to find reversible error in the action of the court in sustaining appellee's special exception to the allegations in paragraphs 4 and 8 of said answer, wherein defendant attempted to set up contemporaneous oral agreements by the terms of which it was alleged substantially and in legal effect that the defendant Chalk was not to pay said note, etc., in so far as these paragraphs of his answer undertook to establish a defense upon such an agreement. We think they run counter to the rule that the terms of a written contract cannot be varied by parol. Appellants cite in aid of these paragraphs of his answer the cases of Allen v. Herrick Hdw. Co., 55 Tex. Civ. App. 249, 118 S. W. 1157; Seabrook v. First National Bank, 192 S. W. 314; Clayton v. Western National Wall Paper Co., 146 S. W. 695, and other cases. Some of these cases seem to go very far in the direction of abrogating the well-settled rule referred to, but we nevertheless think they may be distinguished from the case before us. Some of them merely go to the effect that a credit substantially admitted to be due at the time of the execution of the note will be allowed by enforcing an agreement to so do at the time the note is executed. The paragraphs of the answer referred to, as we construe them, go beyond this. Construed as a whole they amount substantially to a plea that at the time of the execution of the $2,800 note nothing whatever was due appellee because of sums due appellant J. W. Chalk upon a proper accounting. The legal effect of the note was an absolute promise to pay a specified sum of money at the date stated. Its legal effect imported an indebtedness, and we do not understand that the courts will entertain and enforce a contract in parol, as such, that would wholly destroy the legal import of the notes sued upon. See Saunders v. Brock, 30 Tex. 422; Ablowich v. Greenville Nat. Bank, 22 Tex. Civ. App. 272, 54 S. W. 794; Dolson v. De Ganahl, 70 Tex. 620, 8 S. W. 321; Hendrick v. Chase Furn. Co., 186 S. W. 277; Luckenbach v. Thomas, 166 S. W. 99; Security Life Ins. v. Allen, 170 S. W. 131; Key v. Hickman, 149 S. W. 275; Standard Wagon Co. v. Roberts, 26 S. W. 246; Bailey v. Rockwall County Nat. Bank, 61 S. W. 530; Matheson v. C-B Live Stock Co., 176 S. W. 734; Long v. Riley, 139 S. W. 79.

Possibly, however, the paragraphs of the answer referred to are more properly to be construed as a plea of failure of consideration or a plea in effect. But if so, these defenses were substantially presented in other paragraphs of the defendant's answer to which the court sustained no exception and under which, so far as we are able to discover from the record, appellants might have been properly allowed to offer proof of the very matters forming the essential basis of the parol agreement relied upon. That is to say, under such other paragraphs evidence would have been admissible of the partnership transactions referred to, and thereunder proof could have been made of any and all sums of money, if any, due appellant J. W. Chalk upon a proper accounting between the partners. No effort to do this, however, was made by appellants, although both appellant J. W. Chalk and appellee J. P. Daggett testified as witnesses upon trial. So that we do not see that appellants were deprived of any substantial defense.

By other assignments appellants insist that the evidence raised the issues of homestead and separate property presented in the pleadings of Mrs. Chalk, and that hence the court was in error in giving the peremptory instruction. As against the homestead claim we find no error in the court's charge. Neither the pleading nor evidence in our judgment sufficiently presented the issue. J. W. Chalk presented no plea of homestead, and appellant Mary E. Chalk, his wife, merely alleged that the section of land covered by the trust deed "is the section on which their homestead is located and was so located at the time of the alleged date of said deed of trust and for many years prior thereto." No particular part of the section is pointed out in the pleadings as the 200 acres occupied as a homestead. By our exemption laws it is clear that Mary E. Chalk is not entitled to the entire section as a homestead, and the burden was upon her to point out in her pleading the particular 200 acres that constituted her homestead and was occupied and used as such; and not having done so the court was not bound to recognize her plea.

The evidence is equally unsatisfactory. It is to the effect that some time in 1895 — some 10 or more years prior to the trial — appellant J. W. Chalk built a house on the section in controversy. The evidence fails to disclose the particular part of the section upon which the house was located, and further shows that it was moved off the section in controversy to another one about 5 years before the trial. With reference to moving away from this section of land Mrs. Chalk testified:

"I don't know whether I can tell just how long it has been since there has been a house on that section of land; it has been several years though. We first moved that house off onto another section. * * * We never lived in the house on the other section of land. We moved to town after moving out of that house. We moved to town to school our children. I couldn't tell you how long ago we moved to town; * * * I reckon it has been 14 years ago, as well as I recollect. * * * We bought a house in Matador and lived there in that home for a few years. * * * After leaving Matador we moved to Roaring Springs."

The evidence of J. W. Chalk was to the effect that after having first lived on the section in controversy they moved away for the purpose of schooling their children; that he owned a home in Matador and lived in it; that later he moved to Roaring Springs on his home there; that he was not living on the section of the land covered by the mortgage at the time it was given, but was living in town at the time. With reference to appellants' home in Roaring Springs the following questions and answers appear in J. W. Chalk's testimony:

"Q. That is a pretty fine home that you have there? A. Yes; it is a comfortable home. I guess it cost $3,500. I will say that it is a pretty good home for that country and country town. Q. You don't claim that fine home in Roaring Springs as your home? A. We don't claim it as a homestead — land to farm on. Yes; it has been about 5 years since this section in question has had a...

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