Matheson v. C-B Live Stock Co.
Decision Date | 01 May 1915 |
Docket Number | (No. 774.) |
Citation | 176 S.W. 734 |
Parties | MATHESON v. C-B LIVE STOCK CO. et al. |
Court | Texas Court of Appeals |
Appeal from District Court, Crosby County; W. R. Spencer, Judge.
Action by H. D. Matheson against the C-B Live Stock Company and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded.
Bean & Klett, of Lubbock, for appellant. J. W. Burton, of Crosbyton, for appellees.
Appellee answered that in addition to the consideration of $50, expressed in the written contract, there was a verbal promise, made before said written contract was entered into, on the part of plaintiff, to improve the property by building a dwelling on said property; that appellant never tendered the $40 mentioned in said contract before November 1, 1908, nor was said sum ever deposited in the registry of the court; that on account of the failure of appellant to make such payment or tender on or before November 1, 1908, appellee, on January 15, 1909, canceled, rescinded, disaffirmed, and forfeited said contract, and so notified appellant.
It is further alleged by appellees, as an excuse for not incorporating the promise to improve the property in the written contract, that "by special agreement no consideration was put into the contract except the $50, and that the further contract of building on said property was omitted because defendant believed that the plaintiff was an honest man." The answer contained no allegation of fraud, accident, or mistake, and the controlling question in the case is the right of appellees to prove by parol the additional agreement on the part of appellant to build a dwelling upon the premises. In 17 Cyc. 661, the rule governing in such cases is stated as follows:
"Where the statement in a written instrument as to the consideration is more than a mere statement of fact or acknowledgment of payment of a money consideration, and is of a contractual nature, as where the consideration consists of a specific and direct promise by one of the parties to do certain things, this part of the contract can no more be changed or modified by parol or extrinsic evidence than any other part, for a party has the right to make the consideration of his agreement of the essence of the contract, and when this is done the provision as to the consideration for the contract must stand upon the same plane as the other provisions of the contract with reference to conclusiveness and immunity from attack by parol or extrinsic evidence."
6 A. & E. Enc. of Law (2d Ed.) p. 775, after announcing the general rule that parol evidence is admissible to vary the consideration expressed in a deed when it is merely the recital of a fact, says:
A review of the cases in this state by the Supreme Court and the various Courts of Civil Appeals, discussing this question, will result in some confusion upon the question of what is a contractual consideration. The case of Jackson v. Chicago, etc., R. R. Co., 54 Mo. App. 636, announces the rule that money may also be contracted for as the consideration in a written contract, and when the intention to so contract is disclosed by the written instrument, no other or additional consideration can be shown. 6 A. & E. Enc. of Law, p. 775, note 1. In the note to Shehy v. Cunningham, 25 L. R. A. (N. S.) 1207, it is said:
3 Jones on Evidence (Horwitz) § 468, states the limitation to be that, if the parol testimony proposed tends to change the contract itself, instead of the consideration, it should be rejected.
4 Wigmore on Evidence, § 2433, uses this language:
In 4 Enc. of Evidence, 200, the rule is stated thus:
The case of Coverdill v. Seymour, 94 Tex. 8, 57 S. W. 37, seems to be the leading case by the Supreme Court in this state touching the question. There the contract recited a cash consideration of $500 and a note for $4,750, in payment for a lumber business. It was stipulated in the contract that Coverdill should turn over to Seymour the proceeds of all sales daily, to be credited on the note....
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Chalk v. Daggett
...from that applicable to other material future undertakings expressed and defined by the written contract. Matheson v. C-B Live Stock Co. (Tex. Civ. App.) 176 S. W. 734; Luckenbach v. Thomas (Tex. Civ. App.) 166 S. W. 102, 10 R. C. L. 1045; Simkins on Contracts, pp. Clayton v. Western Nation......
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...86 S. W. 322; Kahn v. Kahn, 94 Tex. 114, 58 S. W. 825; Paris Grocery Co. v. Burks, 101 Tex. 106, 105 S. W. 174; Matheson v. C-B. Live Stock Co. (Tex. Civ. App.) 176 S. W. 734; Boone v. Mierow, 33 Tex. Civ. App. 295, 76 S. W. 772; McCullough v. Farmers', etc., 58 Tex. Civ. App. 160, 123 S. W......
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Bradshaw v. McDonald, A-1826.
...instrument could not be modified or changed by parol. In support of this statement the court cited only one case, Matheson v. C-B Live Stock Co., Tex.Civ. App., 176 S.W. 734. The Matheson case had nothing at all to do with a mortgage, but involved merely an application of the familiar rules......
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