Thomas v. Hammond

• Decision Date: 01 January 1877
• Citation: 47 Tex. 42
• Parties: DUDLEY THOMAS ET AL. v. A. P. HAMMOND ET AL.
• Court: Texas Supreme Court

47 Tex. 42

DUDLEY THOMAS ET AL.

v.A. P. HAMMOND ET AL.

Supreme Court of Texas.

1877.

APPEAL from Victoria. Tried below before the Hon. T. C. Barden.

A statement of the case is given in the opinion.

A. B. Petticolas, for appellant, cited 1 Greenl. Ev., secs. 275, 276; Franklin v. Mooney, 2 Tex., 452;Reid v. Allen, 18 Tex., 241;Self v. King, 28 Tex., 553;Trammell v. Pilgrim, 20 Tex., 158; 2 Sugd. on Vend., 220; Cooper v. Singleton, 19 Tex., 262; 1 Bouv., 345; Sutton v. Page, 4 Tex., 147;Wheeler v. Styles, 28 Tex., 243; Sedg. on Dam., 290, 291; Raines v. Calloway, 27 Tex., 685; Story on Bills, secs. 187, 355; Pars. on Notes and Bills, 162; Epperson v. Young, 8 Tex., 136;Callison v. Gray, 25 Tex., 84;Wright v. Hays, 34 Tex., 253;Hunt v. White, 24 Tex., 643; 1 Sugd. on Vend., 2; Baldridge v. Cook, 27 Tex., 569; 4 Kent, 179, 477; Hall v. York, 22 Tex., 643;Anding v. Perkins, 29 Tex., 353;Watson v. Flanagan, 14 Tex., 354;Moore v. Curry, 36 Tex., 668.

Glass & Callender, for appellees, cited 1 Greenl., sec. 284; McCreary v. McCreary, 5 Gill & John., 157; Hall v. Maccubin, 6 Gill & John., 107; Lewis v. Gray, 1 Mass., 297; Lapham v. Whipple, 8 Met., 59; Jeffery v. Walton, 1 Stark., 267; McCulloch v. Girard, 4 Wash. C. C., 292; 3 Starkie's Ev., 1047, 1050; 2 Phillips's Ev., by C. & H., 772, note 295; Mead v. Randolph, 8 Tex., 191;McClenny v. Floyd, 10 Tex., 159;Johnson v. Deloney, 35 Tex., 42; Edws. on Bills and Notes, 319; 10 Johns., 231;8 Wend., 437;Cozzins v. Whitaker, 3 Stew. & Port., 329; 1 Story's Eq., §154; James v. Fulcrod, 5 Tex., 516;Raines v. Calloway, 27 Tex., 678; Sedg. on Dam., 171, 186; Morris v. Phelps, 5 Johns., 56;Griffin v. Reynolds, 17 How., 609;Hunt v. Orwig, 17 B. Mon., 73;Dimmick v. Lockwood, 10 Wend., 142; Rawle on Cov. for Title, 168, and authorities; Weathered v. Smith, 9 Tex., 625; Pars. on Notes and Bills, 262, 275; Story on Agency, §§ 140, 140a.

The case was returned for reargument, and A. B. Petticolas, in supplemental brief for appellant, argued--

By memorandum in the papers, it is found that the point for reargument is: “Was that part of the agreement to apply purchase-money to liquidation of liens a collateral agreement, or was it a part and parcel of the contract about the land, and could that part of the agreement be proved by verbal testimony?”

The first question--Was the agreement a collateral undertaking?--is answered by the defendant in the negative. He then says it was part and parcel of the contract for the land, and, upon the question as raised by the demurrer, it certainly would have to be so considered.

But upon the pleadings of appellant, filed after the demurrer was decided, and upon a fair consideration of the facts, the agreement, if made at all, which the appellant denies, was a personal agreement of Miles, cotemporaneous with the deed, but with which appellants had nothing to do. As to Thomas, it was without consideration, and would have been void if made. This is as the facts show it.

On the question, however, as raised by demurrer, and conceding, for argument, that it was part and parcel of the contract of sale, was unwritten proof of it admissible? Appellant says not.

The pleading of appellee sets up no fraud, accident, or mistake, or trust, to authorize such unwritten evidence, and nothing of the kind was sought to be proved, so that no authorities authorizing the admission of parol testimony on any of these grounds is at all in point, and appellant insists that the agreement could not be proved by parol--1st. Because it adds to and contradicts the language of a written instrument. 2d. Because void under the statute of frauds, as not to be performed within one year.

Sale was made 26th of April, 1866; the note contested in this case, by the setting up of this parol agreement, became due September 1, 1868.

On the first point, the following authorities are relied on, in addition to those already referred to:

Welles v. Dexter, 1 Root, (Conn.,) 253.

Action in ejectment, plaintiff's title being under a deed by Marsh to his sister; defense, that the deed was delivered on certain conditions, which had not been performed, proved by parol. Judgment: “Parol evidence is not admissible to prove a deed delivered to a party to be an escrow, or to prove any parol conditions which would defeat or contort its legal effect and operation.” (Wallace v. Baker, 1 Binney, (Penn.,) 610.)

Assumpsit, for a debt evidenced by a writing; defense, a parol contemporaneous agreement. The judgment: “The defendant executes a writing, upon the faith of which the plaintiff parts with valuable property, and afterwards wants to prove that before he signed it, he had intentions and made declarations tending to render it of no value. * * * It is very clear that this testimony was properly rejected.” The facts of this case are particularly referred to. (Smith v. Williams, 1 Murphey, (N. C.,) 428.)

Action, breach of warranty of slave; evidence, written bill of sale, without warranty of soundness; offer to prove such warranty by parol. Judgment, with full citation of authorities that the evidence was inadmissible.

Assumpsit, for the value of mules, sold Frost by plaintiff by virtue of the following note: “Sir: Whatever sum E. Frost shall give his note of hand for to you, we will hold ourselves obligated to pay, in case said Frost should not pay them to you, as long as he and you shall agree to have the said notes lie against Frost.” Signed by defendant.

After suit, judgment, and insolvent oath of Frost, suit brought against Tyler; defense by parol, that Frost was able to pay when notes became due, and for some time afterwards, rejected; held by Supreme Court, not error. (Northrop v. Speary, 1 Day, (Conn.,) 23.)

Plaintiff sold defendant a tract of land, by metes and bounds, specifying number of acres sold. A note was given for purchase-money, which was afterwards paid; plaintiff alleged, however, in his declaration, that it was agreed between plaintiff and defendant, at the time the deed was made, that if there was more land than the deed called for, defendant should pay plaintiff for the excess; and if it contained less than the deed called for, plaintiff should refund proportionately.

By the court: “The contract stated in the declaration was but one entire contract, made at the time of the sale and conveyance of the land, the whole of which is to be considered as included in the deed and note.” Held, the parol evidence inadmissible. (Miller v. Washburn, 117 Mass., 371.)

Parol evidence, in this case, was offered to show that when the deed granting a right of way was made, the way existed, and was known to the parties, and was intended to be conveyed as it then existed; held, admissible. This is a case where the strongest equities existed, calling for the admission of the testimony. (Jones v. Warner, 11 Conn., 40.)

Particular attention is called to the facts in this case. The point as to the evidence was, that, by the terms of the bill of lading, the master of the vessel was to deliver the coal in New York, instead of which he delivered it in the Connecticut river, at East Haddam; and the deposition of the master was offered to show that he was verbally authorized by the agent of plaintiff to carry the coals to East Haddam. The evidence was rejected. (Railroad Co. v. Leach, 4 Jones, (N. C.,) 340.) Defendant contracted in writing for railroad shares, and resisted a call for installments, and was sued. His defense was, that he subscribed upon the express condition and promise of the railroad company that the road should be located at a certain place, and it was located elsewhere; that this was the consideration, and a condition precedent, &c., and this condition had been broken. This he proposed to prove by parol, and it was admitted by the road to be true. (Id., 343.) Held, inadmissible.

The last case which will be specially referred to is, in its facts, exactly in point, and seems conclusive. (Timms v. Shannon, 19 Md., 296.) Appeal from the equity side of the Circuit Court. A mortgaged lands to D, to secure the payment of $1,000. Afterwards A sold the land to B, with covenant of warranty against all persons claiming under A. B executed bonds and mortgage for purchase-money. After payment of all the bonds, except the three last, for $1,500, A assigned the mortgage and unpaid bonds to C, and C sued to foreclose. B defended, upon the ground that, by a parol agreement, made between A and B at the time the land was sold, A agreed to pay the mortgaged debt to D, and if he should fail to do so, then B should retain a sufficient sum for that purpose out of the last installment of the purchase-money. Held, in equity, to be inadmissible. The elementary works are full of authority on the same point. (Snell's Prin. of Equity, 210; Bing. on Sale of Real Prop., 8, 227, 228, 238; 2 Hilliard on Real Prop., 319; 1 Hilliard on Conts., 162, 167, 169, note A, 170, 171; Hilliard on Vend., 170, 171, 172; Rawle on Cov. for Title, 607.)

“It is one of the most settled principles of the law of vendor and purchaser, that a purchaser, who has received no covenants which cover the defect or incumbrance, can neither detain the purchase-money, nor recover it back, if paid. Unless there has been fraud, he is absolutely without relief, either in law or equity.” (Rawle on Cov. for Title, 637, 638, 716, 717, notes 2 and 3, p. 717.)

But such a contract in parol would be void under the statute of frauds. (Dyer v. Graves, 37 Vt., 369; Hilliard on Vend., 107, 108.)

“A purchaser of land under an incumbrance, who receives a conveyance without covenants, cannot set up a concurrent parol agreement on the part of the grantor to pay off the incumbrances; for such agreement is parcel of an entire agreement for the sale of the lands. (Duncan v. Blair, 5 Denio, 196.)

According to appellee's allegations and proof, this agreement to pay off incumbrances by Miles was a part of the consideration, the price for which the land sold. If so,...