Preston v. Breedlove

• Decision Date: 01 January 1871
• Citation: 36 Tex. 96
• Parties: J. E. PRESTON v. C. R. BREEDLOVE.
• Court: Texas Supreme Court

36 Tex. 96

J. E. PRESTON

v.C. R. BREEDLOVE.

Supreme Court of Texas.

1871.

1. Rulings in Central Railway Company v. George, 32 Texas, 568, and Van Alstyne v. Sorley, Id., 518, on the subject of contracts payable in coin, cited and approved.

2. When a case is brought to this court from a judgment erroneously rendered by the court below for coin instead of for dollars and cents, the appellee may have the error corrected and the judgment reformed in this court, by placing on record his consent to receive currency in discharge of the judgment; but a mere assertion contained in his brief that he stands ready to receive currency will not suffice.

3. In defense to a suit brought by an indorsee upon certain promissory notes, the defendant pleaded that the notes were given for the purchase money of certain lots of land, and that, at the time of his purchase of the land, there was an outstanding vendor's lien on the same for three hundred and twenty-four dollars and thirty-four cents in favor of one N., and that it was understood between him and his vendor, the payee in the notes, that the incumbrance should be paid off by the payee before the maturity of the notes, which was not done, and in consequence of which he, the defendant, was compelled to pay off the lien to keep the land from being sold under execution; that the notes were assigned to the plaintiff after maturity, and with notice on his part of their dishonor; and therefore he asked to have the amount of the vendor's lien deducted from the plaintiff's demand. Held, that the answer set up a good defense pro tanto, and it was error for the court below to sustain a demurrer to the same.

4. Parol evidence is not admissible to control or vary a written contract, but is admissible to prove a verbal contract collateral to and contemporaneous with the written contract, though it refer to the same subject matter, and may affect the rights of the parties under the written contract.

ERROR from Grimes. Tried below before the Hon. James R. Burnett.

In the third head-note will be found, in a condensed form, the allegations contained in the amended answer of the defendant in the court below, to which the court below erroneously sustained the plaintiff's demurrer.

Preston & Smith and Walton & Green for plaintiff in error.

Chandler, Carleton & Robertson and J. C. Hutcheson for defendant in error.

WALKER, J.

This case is brought to this court on writ of error, and the following causes are assigned:--

First. The court erred in rendering judgment for a certain number of...