Landrum v. Stewart

• Decision Date: 13 May 1908
• Citation: 111 S.W. 769
• Parties: LANDRUM v. STEWART.
• Court: Texas Court of Appeals

111 S.W. 769

LANDRUM v. STEWART.

Court of Civil Appeals of Texas.

May 13, 1908.

On Rehearing, June 24, 1908.

Appeal from Falls County Court; D. H. Boyles, Judge.

Action by E. A. Stewart against J. B. Landrum. Judgment for plaintiff, and defendant appeals. Reversed and remanded on rehearing.

Nat Lewellyn, for appellant. Z. I. Harlan, for appellee.

RICE, J.

This suit was instituted by appellee, E. A. Stewart, against J. B. Landrum, appellant, on a certain note for the sum of $300, executed on the 23d day of February, 1903, by appellant Landrum, and payable to the order of G. Q. Menefee, which it was alleged was thereafter for value duly transfered to appellee. Menefee was not made a party to said suit; it being alleged in the petition that he was insolvent. Notwithstanding this, however, Menefee and Landrum both filed answers. Appellant Landrum, by his first amended answer, after a general demurrer and a general denial, specially answered as follows: "Answering further, Landrum, defendant, says that Menefee was due and indebted to the International Harvesting Company in the sum of $276, and that Stewart, agent for this company, came to him (Menefee), and attempted to settle said claim, told him (Menefee) that he could go to work for said company for the sum of $75 per month until this claim was satisfied, and requested him further that he (Menefee) should give a bond or note for the sum of $300, to show the company his good faith in the matter, and to guarantee the provisions of his contract with said Stewart. In pursuance of this agreement, he had defendant J. B. Landrum to make his (Landrum's) note to him, Menefee, for the sum of $300, which he, Menefee, put up with Stewart. Said Stewart agreed that he would take said note and hold same as a guaranty that he, Menefee, would perform his part of the contract. The contract with Stewart was that Menefee should go to work for the harvesting company for the sum of $75 per month and his expenses, to commence the 1st day of March, 1903. J. B. Landrum says that defendant Menefee was at all times ready to perform services for said Stewart, and that he (Menefee) would not accept employment from any one else, but held himself out to engage in this work for the term of four months. Defendant Landrum further shows that he (Menefee) owed him no sum of money, and that this note was signed as a bond, and that E. A. Stewart, plaintiff, well knew these facts at the time he received and accepted said note. Wherefore defendant J. B. Landrum says that the consideration for the note sued on has wholly failed. J. B. Landrum. Sworn to and subscribed before me this 11th day of March, 1907. R. W. Phillips. Answering further, if need be, defendant says that on account of facts above he was damaged in the sum of $400, which he pleads in reconvention against E. A. Stewart. Defendant further says that if he is cast in this suit, he asks judgment over against Menefee for any sum that he may be liable for. All of which he will ever pray."

Defendant Menefee, in his first amended answer, after a general demurrer and a general denial, answered specially alleging substantially the same facts as set up by defendant Landrum. Appellee replied by supplemental petition to said answer of defendant Landrum by general demurrer and special exceptions. In the view we take of this case, it will not be necessary to state the substance of said special exception. A jury having been waived, and the case tried before the court, the court sustained the general demurrer and special exceptions to the answer of defendant Landrum, and rendered judgment for appellee against appellant for the full amount of said note.

Appellant Landrum alone has appealed, and by his first and second assignments urges that the court erred in sustaining exceptions to his answer. Under appellee's first counter proposition it is insisted that, the note sued upon being a written contract, it was not permissible to contradict, vary, or add to the same by proof of prior or contemporaneous verbal agreements, and the sustaining of a demurrer to an answer setting up such an agreement in a suit on the note is not error. We do not concur with appellee in this contention with respect to the facts set forth in appellant's answer. The rule excluding parol evidence when offered to contradict or vary the terms, provisions, or legal effect of a written instrument has frequently been held to have no application to collateral undertakings, nor to cases in which the written instruments were executed only in part performance of an entire oral agreement. Where the note or written instrument is only part of a more comprehensive agreement or transaction, then the rule...