Walter v. Dearing
| Decision Date | 09 November 1901 |
| Citation | 65 S.W. 380 |
| Parties | WALTER v. DEARING. |
| Court | Texas Court of Appeals |
Appeal from district court, Hill county; Wm. Poindexter, Judge.
Action by R. H. Dearing against George Walter on contract and for the foreclosure of a mechanic's lien. From a judgment in favor of the plaintiff, the defendant appeals. Reversed.
Geo. I. Jordan, Walter Collins, and A. G. Walker, for appellant. Wear, Morrow & Smithdeal, for appellee.
Dearing sued Walter, seeking to recover on a debt contracted by the Home Ice Company, but claimed to have been assumed by Walter. On August 22, 1900, the Home Ice Company conveyed to Walter a lot and ice plant situated thereon. The deed was in the usual form, and contained this recitation, viz.: "In consideration of the sum of fifteen thousand and two hundred dollars, paid and secured to be paid by George Walter, as follows: $7,717.00 cash in hand paid, the receipt of which is hereby acknowledged, and the assumption by the said George Walter of the payment of three certain promissory notes, payable to the Frick Company, for the sum of $2,295.70 each, executed by Crumley & Morris, E. S. Crumley, and O. J. Morris, each of date May 28, 1899, due respectively twelve, eighteen, and twenty-four months after date, each bearing interest at the rate of 7 per cent. per annum from date (they having been assumed by the Home Ice Company), upon which said notes there is now due principal and interest the sum of $7,483.00." Over the objection of appellant, Walter, the court permitted the introduction of parol testimony to the effect that, in addition to the consideration specified in the deed, appellant had assumed to pay the indebtedness due Dearing. The contention of appellant is that the deed fully expresses the contract between Walter and the ice company, and that parol evidence will not be heard to contradict or vary its terms. Where a cash consideration is recited in a contract, parol proof of another and additional consideration is legitimate. Taylor v. Merrill, 64 Tex. 496; Womack v. Wamble, 7 Tex. Civ. App. 273, 27 S. W. 154. Where the contract states what was the undertaking or obligation of the party sought to be charged, the terms of the contract as written must control, and cannot be changed or added to by parol evidence. Railroad Co. v. Garrett, 52 Tex. 133; Railroad Co. v. McKinney, 55 Tex. 176; Railroad Co. v. Pfeuffer, 56 Tex. 71; Weaver v. City of Gainesville (Tex. Civ. App.) 21 S. W. 317; Womack v....
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...testimony is always admissible to show an additional or other consideration. Anderman v. Meier, 91 Minn. 413, 98 N.W. 327; Walter v. Dearing (Tex.), 65 S.W. 380; Womack v. Wamble, 7 Tex. Civ. App. 273; 27 S.W. Pickett v. Green, 120 Ind. 584. (4) The release attached to the answer, not havin......
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