Hogan v. Crawford

• Decision Date: 31 January 1869
• Citation: 31 Tex. 633
• Parties: JAMES B. HOGAN v. GEORGE W. CRAWFORD, ADM'R.
• Court: Texas Supreme Court

31 Tex. 633

JAMES B. HOGAN

v.GEORGE W. CRAWFORD, ADM'R.

Supreme Court of Texas.

January, 1869.

There can be no question that oral evidence may be relied upon in some cases to change or modify or even to set aside written agreements. It may readily be conceded that a new and distinct agreement may be established by parol, as having been entered into as a substitute for the original written contract. Doubtless it may be established by parol, after performance, that the time of performance was enlarged, or the place of performance changed, or actual performance was actually waived. Ante, 341.

Even a suppletory agreement may be proved by parol. But in all such cases, it must appear that each novation or new obligation was founded upon a good and sufficient consideration, to affect in any manner the original contract in writing.

An agreement to erect a hotel upon the lot purchased of the plaintiff is no consideration for a parol contract to forbear suit for ten years.

ERROR from Harris. The case was tried before Hon. PETER W. GRAY, one of the district judges.

The suit was upon five notes and a mortgage given to secure them. Upon the plea of the defendant, the jury found that the plaintiff's intestate had agreed to extend the time of payment of the notes for ten years. They also found certain payments which were applied to the plaintiff's credit, and the defendant was discharged until the expiration of the ten years. A new trial was granted and a judgment rendered for the plaintiff for the balance due. There was no bill of exceptions or statement of facts, hence there really seemed to be nothing for review except the ruling which sustained the exception to the plea setting up the new contracts to forbear for ten years, upon condition that the defendant would build a tavern upon the lots for which the notes were given.

John T. Brady, for plaintiff in error. I. It is well settled that in case of a simple contract in writing oral evidence is admissible to show that by a subsequent agreement the time of performance was changed. 1 Greenl. Ev. §§ 303, 304; Erwin v. Sanders, 1 Cow. 249; Fleming v. Gilbert, 2 Johns. 530; Frost v. Everret, 5 Cow. 497;Dearborn v. Cross, 7 Cow. 50; Robinson v. Bachelor, 9 N. H. 40; Blood v. Goodrich, 9 Wend. 68;Nalle v. Gates, 20 Tex. 315.

Rogers & Willie, for defendant in error.

LINDSAY, J.

There can be no question that oral evidence may be relied upon in some cases to change or modify or even set aside written agreements. It may readily be conceded that a new and distinct agreement may be established by parol, as having been entered into as a substitute for the original written contract. Doubtless it may be established by parol, after performance, that the time of performance was enlarged, or the place of performance changed, or actual performance was actually waived. Even a suppletory agreement may be proved by parol. But in all such cases it must appear that each...