Martin v. Rotan Grocery Co.
| Citation | 66 S.W. 212 |
| Parties | MARTIN et al. v. ROTAN GROCERY CO.<SMALL><SUP>1</SUP></SMALL> |
| Decision Date | 22 January 1902 |
| Court | Texas Court of Appeals |
Appeal from district court, McLennan county; Marshall Surratt, Judge.
Action by the Rotan Grocery Company against Martin & Rogers and others on certain notes the payment of which, it was alleged, was guaranteed by the defendants Oardin, Brown & Wood. From a judgment in favor of the plaintiff, the defendants appeal. Reversed.
Stinnett Bros., J. E. Walker, and S. P. Sadler, for appellants. A. C. Prendergast, for appellee.
As to the effect of the contract of guaranty sued upon, we adhere to the ruling made by this court on the first trial of this case, which will be found reported in 57 S. W. 706; but we are now of the opinion that we erred in the former disposition of the case, in holding that parol evidence was not admissible to explain and prove an additional consideration to the written contract executed by W. C. Martin and R. S. Rogers on October 29, 1896, wherein they transferred to the Rotan Grocery Company the partnership notes, open accounts, and their books. This instrument recites that the transfer is made in consideration of securing the indebtedness due the Rotan Grocery Company. The additional consideration for the execution of this instrument, which was sought to be established by the parol evidence which was excluded, is to the effect that, upon the execution of the transfer of the notes and accounts and books to the Rotan Grocery Company, the sureties or guarantors of Martin & Rogers, who are sought to be held liable on their contract of guaranty in this case, should be released from all liability. The excluded testimony tends to prove that when this transfer was made it was understood and agreed between the agent of the Rotan Grocery Company, who was representing it in procuring the transfer, and Martin & Rogers, that, as a part of the consideration for the same, the guarantors should be released. There is nothing upon the face of the instrument that discloses this part of the agreement; but we are now of the opinion that the effect of this testimony is to establish an additional consideration, which the authorities hold can be done without violating the rule which prohibits parol evidence to change the legal effect of an unambiguous contract. In Taylor v. Merrill, 64 Tex. 496, it is held that a different or additional consideration may be established by parol evidence; and to the same effect is Northington v. Tauohy,...
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