Dooley v. Gray

• Citation: 54 S.W.2d 558
• Decision Date: 10 November 1932
• Docket Number: No. 7716.,7716.
• Parties: DOOLEY et al. v. GRAY.
• Court: Court of Appeals of Texas

Page 558

54 S.W.2d 558

DOOLEY et al. v. GRAY.

No. 7716.

Court of Civil Appeals of Texas. Austin.

November 10, 1932.

Rehearing Denied November 30, 1932.

Appeal from Coleman County Court; A. O. Newman, Judge.

Action by Irene S. Dooley and husband against Grier M. Gray. From a judgment in favor of defendant, plaintiffs appeal.

Affirmed.

Critz & Woodward, of Coleman, for appellants.

W. Marcus Weatherred, of Coleman, for appellee.

BAUGH, J.

Appellants sued appellee for a balance alleged to be due upon a $2,000 note, dated January 8, 1925, due January 1, 1926, credited with payments of $1,500 on the principal, and with interest to January 1, 1927, executed by appellee, payable to D. L. Snodgrass, and by him indorsed to his sister, appellant here, on July 6, 1925. Appellee defended on the ground that this note was in renewal and extension of notes formerly executed by him to F. L. Snodgrass, father of D. L. Snodgrass, for borrowed money; that F. L. Snodgrass had owed appellee $500 for many years and had agreed to credit said notes with that sum upon final settlement; that, after his death, D. L. Snodgrass, executor of the last will of F. L. Snodgrass, at the time of such renewal, agreed to give such credit when such note was paid. The case was submitted to a jury upon special issues, in response to which they found as follows:

(1) That F. L. Snodgrass owed appellee $500.

(2) That F. L. Snodgrass had agreed with appellee to allow him credit for said sum on the note executed to F. L. Snodgrass.

(3) That D. L. Snodgrass, as executor of the estate of F. L. Snodgrass, deceased, had made the same agreement as to the note sued upon.

(4) That, when appellee made the last payment of $500 and interest to D. L. Snodgrass on January 4, 1927 ($1,000 and interest to January 8, 1926, having been paid by appellee on December 12, 1925), D. L. Snodgrass then agreed to allow appellee a credit for said $500 which his father owed to appellee, in full settlement of the note sued upon.

Judgment was accordingly rendered that appellant take nothing, from which she has appealed.

Appellant's first contention is that the pleadings and proof undertake to vary by parol a written contract between the parties. This contention is not sustained. The general rule is elementary that parol evidence is not admissible to vary or contradict the terms of a written instrument, and that such rule applies to bills and notes. But it is likewise well settled that a parol agreement made at the time of the execution and delivery of a written instrument, or afterwards, to apply certain credits as payment thereon, or to show payments other than those indorsed on the instrument, is enforceable and may be shown by parol. Such matters relate to the performance of the contract, and do not vary nor contradict it. Nalle v. Gates, 20 Tex. 315; Allen v. Herrick Hdw. Co., 55 Tex. Civ. App. 249, 118 S. W. 1157; Rahe v. Yett (Tex. Civ. App.) 164 S. W. 30; Barcus v. J. I. Case Threshing Machine Co. (Tex. Civ. App.) 197 S. W. 478; Phipps v. Hemphill (Tex. Civ. App.) 267 S. W. 310; Pope v. Hennessey (Tex. Civ. App.) 38 S.W.(2d) 834; 22 C. J. 1210; 6 Tex. Jur. 960; 17 Tex. Jur. 847. In the instant case it also appears that a part of the consideration for the execution of said note for $2,000 was that appellee should be given credit, when it matured, for the $500 that F. L. Snodgrass owed him.

Appellant next contends that the $500, being an open account due by F. L. Snodgrass to appellee for an automobile purchased by Snodgrass from appellee's son in 1918, was long since barred by limitation, and that appellee could not claim same as a credit. With this we do not agree. This indebtedness of F. L. Snodgrass to appellee was never denied nor repudiated, but appears to have been recognized by F. L. Snodgrass during his lifetime and by D. L....