Womack v. Wamble

• Decision Date: 17 May 1894
• Citation: 27 S.W. 154
• Parties: WOMACK v. WAMBLE et al.
• Court: Texas Court of Appeals

27 S.W. 154

WOMACK v. WAMBLE et al.

Court of Civil Appeals of Texas.

May 17, 1894.

Appeal from Burleson county court; Thomas M. Hunt, Judge.

Action by Wamble & McArthur against W. L. Womack. There was judgment for plaintiffs, from which defendant appeals. Affirmed.

Sam G. Ragsdale and A. W. McIver, for appellant. E. G. Banks, for appellees.

WILLIAMS, J.

The deed from appellees to appellant, in consideration of a recited payment of $300 cash, conveyed to appellant the lot of ground, and the right to extend their wall 40 feet back from the end of the building owned by appellees. It did not undertake to state what appellant was to do in return for this grant, further than it recited a cash consideration. It is therefore like an ordinary deed conveying property, or conferring a right or privilege, which designates what right is conveyed, but does not express the undertaking of the other contracting party. Hence, it is not inconsistent with its terms to prove by parol what obligation the grantee assumed. In this it differs from the cases cited by the appellant in which the instrument stated what was the undertaking or obligation of the party sought to be charged by parol. In such cases the instrument is held to express the whole of the contract, and cannot, therefore, be varied or added to by parol evidence. Weaver v. City of Gainesville (Tex. Civ. App.) 21 S. W. 317; Willis v. Byars, Id. 321; Belcher v. Mulhall, 57 Tex. 19; Railroad Co. v. Garrett, 52 Tex. 133; Railroad Co. v. McKinney, 55 Tex. 176; Railroad Co. v. Pfeuffer, 56 Tex. 71. A contract may be partly written and partly oral. The obligations on one side may be all in writing, while those on the other may be wholly oral. Such is often the case when one party makes a deed upon consideration of some undertaking by another. That the recital of a money consideration will not exclude proof of another and additional consideration is well settled. Taylor v. Merrill, 64 Tex. 494. The statement of the account sued on was sufficient to admit proof. There was no substantial difference between the statement given by the witness McArthur, when called to restate to the jury his testimony given during the trial, and the statement which he was asked to repeat. Affirmed.