Roundtree v. Gilroy

• Decision Date: 09 May 1882
• Docket Number: Case No. 4477.
• Citation: 57 Tex. 176
• Parties: R. F. ROUNDTREE v. GEORGE GILROY.
• Court: Texas Supreme Court

57 Tex. 176

R. F. ROUNDTREE

v.GEORGE GILROY.

Case No. 4477.

Supreme Court of Texas.

May 9, 1882.

APPEAL from Llano. Tried below before the Hon. A. W. Moursand, special district judge, appointed by the governor, instead of Hon. A. W. Cooley, judge of 33d judicial district.

Geo. Gilroy sued R. F. Roundtree, in the district court of Llano county, on the following writing, viz.: “$433.33. Due G. Gilroy, on demand, four hundred and thirty-three dollars and thirty-three cents, for work building stone fence. This July 5, 1879. R. F. ROUNDTREE.”

Roundtree answered, 1. General demurrer to sufficiency of petition. 2. General denial. 3. That on the 1st day of May, 1877, appellee and appellant entered into a verbal contract, by which appellee was to build for appellant a certain stone fence at one dollar and fifty cents per rod, and to be paid for by appellant in two alternate land certificates, of six hundred and forty acres each, at $200 a piece, excepting that appellant was to pay appellee current or living expenses while at work; that under this contract appellee had worked, at irregular intervals, from May 1, 1877, to July 1, 1879; that appellee had built all of the fence, excepting four rods, and appellant paid him, at divers times, several sums of money. That on the 5th day of July, 1879, counting the whole of fence built, and to be built, by appellee, the same at contract price amounted to $716; that taking from this sum $286.66, the amount of money paid by appellant to appellee, it left the sum of $433.33 that would be due to appellee on building the other four rods of fence. That on the 5th day of July, 1879, at the instance of appellee, appellant made the memoranda in writing sued on, but only as an evidence of how much would be due appellee on a settlement, and not as an evidence of indebtedness. That appellee, in order to get the written memoranda, took advantage of appellant and made false and fraudulent representations to him. That since the execution of the written memoranda, appellant had paid appellee $21.30, in taxes, due by appellee to tax collector, and one saddle and bridle, which was to go as a credit on said work. That subsequent to execution of the writing, appellee agreed to receive the two alternate land certificates, and give appellant a credit of $400; and appellant had ever been ready and willing to pay and deliver the same, and to pay the remainder in cash, if the four rods of fence were built. That the customary price for building a rock fence, for cash, would be one dollar per rod. That the consideration of the written memoranda had failed in fact, as the same was given for four rods of fence which appellee was to build, and he had failed and refused. The pleas were sworn to.

Appellee excepted to the special answer of appellant. 1. To any parol agreement prior to and contemporaneous with the written instrument to vary and contradict the same. 2. To the allegations of fraud charged against appellee. 3. To all allegations setting up a parol agreement after execution of written agreement, as same are vague, indefinite and uncertain.

Appellee, replying on the facts, pleaded general denial; special denial of any agreement after execution of written instrument; specially denied the allegations of fraud; specially denied failure of consideration; specially denied violating any contract made; that if he agreed to build the four rods of fence, the same was to be built where appellant's cow-pen was, and appellant was to remove the cow-pen and had failed to do so, though demanded by appellee to do so.

The court sustained the special exceptions of appellee as to the allegations in appellant's answer, setting up a prior verbal and parol agreement.

The court also sustained the special exceptions as to the allegations of fraud in the answer.

Objections were made to the special judge presiding, on the ground that he was a member of the 17th legislature. The objection was overruled.

The defendant objected to the jury tendered, because the jurors had been selected by newly appointed jury commissioners, after the service by the jurors selected for the term. This objection was also overruled.

The rulings upon the testimony sufficiently appear in the opinion.

The jury found a verdict for Gilroy for $472.75.

Motion for new trial was overruled, and the defendant appealed.

W. A. H. Miller and John Dowell, for appellant.

I. The special judge, being a member of the legislature, was disqualified. State Const., art. 11, sec. 1; art. 3, secs. 1 and 2; art. 5; art. 16, secs. 1, 12 and 40; art. 3, sec. 24.

II. The court erred in overruling challenges to the array of the jurors, the jurors having been selected by commissioners improperly appointed and without authority of law. R. S., 3017, 3022, 3023.

III. The original contract was verbal--only part of it was reduced to writing; that part was simply an estimate of how many dollars' worth of work appellee had performed, and how much he was entitled to, but to be paid according to original contract. Where prior or contemporaneous verbal agreements form part of a written one, they are admissible or wherein explanatory. Hogan v. Crawford, 31 Tex., 634;Epperson v. Young, 8 Tex., 135; 1 Pasch. Dig., art. 7823, p. 658, and authorities there cited.

IV. The verbal contract prior to the due-bill was not contradictory of it, but explanatory and in harmony with it, and the written and verbal contract so set up by appellant as constituting one whole, alone gives the true contract between the parties.

V. The due bill in this case is only an estimate of the amount due appellee for work, and is not such an instrument as excludes parol evidence to explain its meaning or even to add to its terms.

VI. Fraud vitiates all contracts, and if appellee obtained an undue advantage by reducing part of the contract to writing, by false representations, certainly it sets aside the due-bill. Melchette v. Zimmerman, 4 Tex., 75; Pasch. Dig., arts. 7901, 7902, 7903, p. 665.

Jas. H. Burts, for appellee.

I. If the office of special district judge and that of member of the legislature were incompatible, the acceptance of that of special judge would vacate the other. Biencourt v. Parker, 27 Tex., 562.

II. The district court has power in term time to appoint jury

commissioners to supply jurors at any time when needed. R. S., art. 322.

III. The plea specified was rightly stricken out as not accompanied by any tender of the certificates referred to as the subject of the agreement sought to be pleaded. Flint v. White, 24 Tex., 643;Smith v. Garrett, 29 Tex., 52, 53.

IV. The plea setting up fraud in obtaining the paper sued on was not sufficient in details. Hendrix v. Nunn, 46 Tex., 148.

STAYTON, ASSOCIATE JUSTICE.

This action was brought by the appellee against the appellant, to recover upon the following instrument in writing: “$433.33. Due G. Gilroy, on demand, four hundred and thirty-three dollars and thirty-three cents, for work building stone fence. This July 5, 1879.

R. F. ROUNDTREE.”

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