Martin v. Hemphill

Decision Date15 February 1922
Docket Number(No. 274-3506.)
Citation237 S.W. 550
CourtTexas Supreme Court

Action by T. W. Martin against C. W. Hemphill. From a judgment of the Court of Civil Appeals affirming a judgment of the district court for defendant (221 S. W. 333), plaintiff brings error. Reversed and remanded.

Snodgrass, Dibrell & Snodgrass, of Coleman, for plaintiff in error.

W. Marcus Weatherred, of Coleman, for defendant in error.


The Court of Civil Appeals gives us the benefit of a clear and accurate statement of this case, as follows:

"Appellant filed this suit against the appellees, C. W. Hemphill and the Central State Bank of Coleman, a state banking corporation, to recover damages for the breach of certain contracts for the sale of cotton by appellees to appellant. The appellees filed separate answers, and the trial court sustained exceptions of the appellee Central State Bank, which eliminated that defendant from the suit.

"The case was tried before a jury, and the court peremptorily instructed a verdict in favor of the remaining defendant, C. W. Hemphill. Judgment was rendered upon the verdict for such defendant, from which this appeal has resulted.

"Appellant's cause of action was based upon certain contracts for the purchase of cotton made at different dates during the month of September, 1917, which contracts were each evidenced by written confirmations. The confirmations were signed with the printed name, McDonald Bros., by T. W. Martin, the latter name being written. It was alleged that the confirmations were each delivered to C. W. Hemphill and accepted by him; and that, at the time of the making of the contracts and the issuing of the confirmations, appellant was engaged in the business of buying and selling cotton in the town of Coleman, in Coleman county, Tex., for himself, but was transacting business under the name of McDonald Bros. It was further alleged that these facts were well known to the defendant C. W. Hemphill. These allegations were denied both generally and specially.

"Appellant offered to prove the facts as alleged, but, upon objection by the appellee Hemphill that the proof tendered was an attempt to vary and contradict by parol the terms of written contracts, the court excluded such testimony.

"The bill of exceptions upon this point shows that appellant testified, in substance, that he resided in Coleman, Coleman county, Tex., during the cotton season of 1917-18, and had been following the business of buying and selling cotton for 15 or 20 years, sometimes buying for himself and sometimes for other people. That during the cotton season of 1916, he was engaged in buying cotton at Sweetwater, Tex., for McDonald Bros., of that place. That during the season of 1917 and 1918 he was engaged in buying and selling cotton at Coleman.

"When it was attempted to show the manner and name in which he did business during the season of 1917, objection was made, and the jury was retired. During the retirement of the jury, appellant testified that he did business at Coleman during 1917, under the name of McDonald Bros., and that he was the sole constituent member of such firm. He testified that he made the purchases in question from appellee C. W. Hemphill, and that in each instance he issued a written confirmation, which correctly stated the date, the amount, and the price and terms of the contract. The first confirmation is typical of all, and is as follows:

                                        "`Coleman, Sept. 8, 1917

"`C. W. Hemphill — Dear Sir: We beg to confirm herewith purchase from you as follows:

                100 B. C. at 19 7/8 B/M
                  "`Differences as follows
                Good middling ........ 3/8 ........ On
                St. middling ......... 1/4 ........ On
                St. low middling ..... 3/8 ........ Off
                Low middling ......... 1ç ....... Off
                St. good ordinary ...................... Off
                Spots .................................. Off same grade white
                Tinges ................................. Off same grade white
                  "`Terms: Oct. 15th. Reimbursement. E. & O. E
                     "`Yours very truly,   McDonald Bros.,
                                            "`By T. W. Martin.'

"It was also testified by appellant that he had previously had a conversation with Hemphill, concerning the use of the name of McDonald Bros. in the contracts. The substance of this testimony was that local merchants had run a garnishment against appellant's bank account, and that he suggested running the cotton account in the name of McDonald Bros., to avoid the garnishment of his funds, to which Hemphill assented.

"Appellant also testified that Hemphill never delivered the cotton upon any of these contracts, but requested an extension of time, to which he consented, provided Hemphill would pay any overdrafts created by the purchase of other cotton to fill the contracts. It was not claimed that there was any definite period of extension.

"As stated, the court excluded this testimony, and in the bill of exceptions qualified the same as follows:

"`This suit was brought by T. W. Martin on written confirmation signed "McDonald Bros., by T. W. Martin," T. W. Martin having testified that during the season of 1916 he bought cotton for and represented McDonald Bros., which was a cotton firm engaged in buying and selling cotton. When he sought to testify that in the confirmations issued he was not acting for McDonald Bros., but for himself under the name of "McDonald Bros.," the defendant objected on the ground that the written confirmation, by the manner of its signature, showed that T. W. Martin was not signing as an individual, but as the agent of McDonald Bros., and that Martin should not be permitted to vary the legal meaning and effect of the signature and of the written instrument, by parol testimony that he was acting for himself in so signing the instrument, which objections were by the court sustained under the decision of Heffron v. Pollard, 73 Tex. 96, 11 S. W. 165, 15 Am. St. Rep. 764.' * * *

"The principal questions upon this appeal are whether the trial court correctly interpreted the contracts as not binding appellant as principal, but as showing that he executed the confirmations as the agent of McDonald Bros.; and whether the court correctly held that appellant should not be permitted to vary the legal meaning and effect of the signature and of the written instruments, by parol testimony that he was acting for himself in signing the same.

"It is in substance the contention of appellees that the contracts were plain and unambiguous, and showed upon their face that appellant did not execute the same for himself and as an individual, but in the capacity as agent for McDonald Bros., and that therefore parol evidence would be inadmissible to vary the meaning and legal effect of the instruments.

"Upon the other hand, it is claimed by appellant that the printed signature of the name McDonald Bros., not revealing whether it was a corporation or partnership, and, if a partnership, not disclosing the constituent members of the firm, parol evidence was admissible to show who was transacting business in that name; and that such testimony would not be contradictory, but explanatory of the written instrument.

"Both parties rely upon the case of Heffron v. Pollard, 73 Tex. 96, upon the authority of which the trial court based his ruling in excluding the proffered testimony, and in peremptorily instructing for appellee Hemphill."

The Court of Civil Appeals, also relying upon the case of Heffron v. Pollard, supra, 73 Tex. 96, 11 S. W. 165, 15 Am. St. Rep. 764, concluded that the trial court properly excluded the testimony in question and affirmed its judgment. See 221 S. W. 333.

The controlling question before us is whether or not the Court of Civil Appeals correctly held that Martin should not have been permitted to prove that he was the sole member of the firm of "McDonald Bros." We think the court erred in so holding, and that such testimony should have been admitted by the trial court. We do not think that proof would have revised the written confirmations. If not, it was clearly admissible.

It is elementary that, in the absence of fraud, accident, or mistake, oral evidence is not admissible to contradict or vary the terms of a written instrument. Many Texas authorities in this connection are collated in case of Harper v. Lott Town & Improvement Co., 228 S. W. 188. That the court in the case of Heffron v. Pollard, supra, had this rule of evidence in mind is quite clear. This can be gathered from several sections of that opinion as follows:

(1) "As to the legal effect of this contract upon its face there can be no doubt. It discloses the names and relation of all the parties connected with it. It binds Fry, the principal, and does not bind Heffron, the agent. If it had said in express terms that Fry was bound by the contract and Heffron not, the meaning in the light of the law would not have been more unmistakable. Can Heffron be held liable upon this written agreement? Is it permissible in order to bind him to show by parol testimony an intention exactly contrary to that expressed on the face of the writing, namely, that Heffron was bound by it and that Fry was not bound? In our opinion this cannot be done without violating a cardinal rule of evidence."

(2) "In the present case also the name is not a fictitious one. It is the name of a real person. But the contract purports to bind him alone, and upon its face is inconsistent with the idea that the defendant in signing it may have intended to use it for his own business name."

(3) "The intention of the parties to a written contract must be derived from the writing itself when its meaning is clear. Can it be said that the admission of parol evidence to show that the contract before us was made for the benefit of defendant [Heffron] and was intended to bind him does not...

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