Dolsen v. De Ganahl

Decision Date04 May 1888
PartiesDOLSEN v. DE GANAHL.
CourtTexas Supreme Court

John A. Green, Jr., Wm. Aubrey, L. C. Grothaus, and S. G. Newton, for appellant. A. S. Chevalier, for appellee.

STAYTON, C. J.

As the administratrix of the estate of S. B. Spotts, deceased, the appellee brought this action to recover the sum due on a promissory note executed by the appellant to the deceased on December 11, 1882, and due one year after its date. It is urged that the court erred in admitting testimony offered to show that the appellee was the administratrix of the estate she assumed to represent. It is unnecessary to inquire whether the evidence was properly admitted, for there was no plea putting her capacity to sue in issue, and there was no necessity for any proof on that point.

There was a plea of want of consideration for the note, which contained much irrelevant matter, of which evidence was admitted; and, after this, the appellee was permitted to testify that, in a conversation between herself and the deceased when the appellant was not present, the deceased stated that the appellant acknowledged the note sued upon to be a just claim against him, and admitted that it was justly due for a horse that had died through ill usage by the appellant, and that he would certainly pay it or secure it. This testimony was objected to, on the ground, among others, that it was hearsay. The judge of the district court seems to have thought that it was admissible in rebuttal of testimony offered by appellant. There was testimony offered by appellant that the court would, no doubt, have excluded, had it been objected to; but the fact that improper evidence was admitted without objection did not authorize the admission of improper evidence, even in rebuttal, when objection was made to it. The evidence admitted, over objection, was clearly inadmissible, and should have been excluded.

In view of the further disposition of the case, we deem it proper to say that the note sued on evidences the contract of the parties, and, under the pleadings, all evidence as to parol contemporaneous agreements between the appellant and the deceased affecting the contract evidenced by the note, and tending to vary or contradict it, should be excluded. The note fixes the...

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51 cases
  • Waters v. Byers Bros. & Co.
    • United States
    • Texas Court of Appeals
    • June 29, 1921
    ...at a stated time. Hendrick v. Chase Furniture Co., 186 S. W. 277; Crooker v. National Phonograph Co., 135 S. W. 647; Dolson v. De Ganahl, 70 Tex. 620, 8 S. W. 321; Long v. Riley, 139 S. W. 79; Nixon v. First State Bank, 60 Tex. Civ. App. 7, 127 S. W. 882; Daniel on Neg. Inst. §§ 80, 81a; no......
  • Dallas Ry. & Terminal Co. v. Bailey
    • United States
    • Texas Supreme Court
    • June 18, 1952
    ...does not authorize the other party, by way of rebuttal, to but in inadmissible testimony over timely and proper objection. Dolsen v. De Ganahl, 70 Tex. 620, 8 S.W. 321; Shiner v. Abbie, 77 Tex. 1, 13 S.W. 613; Massey v. Allen, Tex.Civ.App., 222 S.W. 682, 684, no writ history; Smith v. Burro......
  • Chalk v. Daggett
    • United States
    • Texas Supreme Court
    • January 9, 1924
    ...it would be subject to the same principle applicable to a conditional payment, emphasized in extent but not in quality. Dolson v. De Ganahl, 70 Tex. 620, 8 S. W. 321. The force of a written contract may not ordinarily be "destroyed" by a contemporaneous parol agreement. Lanius v. Shubor, 77......
  • Davis v. White
    • United States
    • Texas Court of Appeals
    • November 7, 1918
    ...point; hence it is unnecessary to inquire whether the evidence was properly admitted. Article 1906, subds. 2, 3, R. S.; Dolson v. De Ganahl, 70 Tex. 620, 8 S. W. 321; Kaack v. Stanton. 51 Tex. Civ. App. 495, 112 S. W. Neither is there any error presented by the ruling on evidence complained......
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