Self v. King

• Decision Date: 31 October 1866
• Citation: 28 Tex. 552
• Parties: H. H. SELF v. JOHN KING.
• Court: Texas Supreme Court

28 Tex. 552

H. H. SELF

v.JOHN KING.

Supreme Court of Texas.

October, 1866.

To a suit upon an instrument in the form of a “due-bill” for one hundred sheep, particularly described, the defendant answered, that it was understood and verbally agreed between him and the plaintiff, at the time of the making of the instrument, that the sheep should not be delivered until the then ensuing spring of 1861, previous to which the suit was instituted: Held, that an exception to the answer was properly sustained, on the ground that it proposed to vary the terms of the written contract by proof of a contemporaneous parol agreement.

When parties have reduced their contract to writing, so as to express its terms and conditions without uncertainty as to its subject and nature, the writing is presumed to contain the whole of the agreement; and hence the rule, that contemporaneous parol evidence is not admissible to contradict or vary the terms of a valid written contract. 25 Tex. 162.

When a written contract for the delivery of cumbrous property fixes no specific time for such delivery, it is the settled construction that the property is to be delivered within a reasonable time; and what is a reasonable time, though often a mixed question of law and fact, is generally a question of law. Pas. Dig. note 284, p. 144.

And it is not competent to show that by a verbal agreement, made simultaneously with such a written contract, the parties fixed a certain time for the delivery of the property. Such parol evidence would contradict the written contract, and should not be received.

It is not questioned that, after such a contract is reduced to writing, the parties may change it by a verbal agreement based upon a sufficient consideration, so as to defer the time of performance and the like. A subsequent agreement so made would recognize the original contract as expressed in writing, and it would not be subject to the objection that it sought to contradict it.

But without alleging fraud or mistake, it is not permissible to show by parol evidence that the true contract of the parties is not expressed in the written instrument executed at the time as embodying its terms and conditions.

Where the witnesses disagree as to the measure of damages, the jury must determine between them.

APPEAL from Ellis. The case was tried before Hon. NAT. M. BURFORD, one of the district judges.

The copy of the contract and principal facts of this case are shown in the opinion of the court. The jury returned a verdict against the appellant for $400, in accordance with the valuation of $4 per head placed upon the sheep by the plaintiff's witnesses. The defendant's witnesses valued the sheep at only $3 per head.

Bradshaw and Hawkins & Kemble, for appellant.

Ferris & Nicholson, for appellee, cited Story, Con. § 970; Rice v. Churchill, 2 Den. 145; Hughes v. Pruitt, 5 Tex. 267; and suggested delay, which opened up all errors apparent of record.

SMITH, J.

This suit was instituted 10th January, 1861, by the appellee, King, on the following instrument of writing, to wit: “Due John King one hundred head of sheep of the following description: good average Texas-raised sheep, eighty-five ewes and fifteen wethers, for value received of him, this the 28th of November, 1860.

H. H. SELF.”

The defendant answered that, although the writing is in the shape of a due-bill for the sheep, yet it was understood by the parties, and agreed by them at the time, that said sheep were not to be delivered until the spring of 1861, and that the writing was put in its present shape for...