Brenard Mfg. Co. v. Barnett

210 S.W. 990 | Tex. App. | 1919

WILLSON, O. J.

(after stating the facts as above). [1] The theory upon which the trial court set off $2S1.09 in appellee’s favor against the amount of the notes sued on, and awarded appellant a recovery of the sum of only $64.01, was that the contract evidenced by the order for the advertising outfit had been modified as the testimony of appellee set out in the statement above indicated it had been, so that appellee, notwithstanding he had not carried on( the “trade extension campaign” nor reported his gross sales every 60 days during the 12 months immediately following the date of appellant’s approval of the order, as he agreed he would, was entitled to,recover of appellant the difference between $435 and 2½ per cent, of the amount of his gross sales for said 12 months. We think the testimony referred to was subject to the objection urged to it, to wit, that it contradicted the writing evidencing the contract between the parties, and that it therefore was inadmissible and not entitled to be considered by the court in determining the 'controversy. The rule applicable has been stated as follows:

“The execution of a contract in writing is deemed to supersede all the oral negotiations or stipulations concerning its terms and subject-matter which preceded or accompanied the execution of the instrument, in the absence of accident, fraud or mistake of fact; and any representation made prior to or contemporaneous with the execution of the written contract is held to be inadmissible to contradict, change or add to the terms plainly incorporated into and made a part of the written contract.” 10 R. C. L. 1016, 1019; and seq 2 Elliott on Contracts, 926 et seq.; Gale Mnfg. Go. v. Finkelstein, 59 S. W. 571.

It is apparent from the record that the understanding which appellee testified he had with appellant’s agent was reached before the order (by appellant’s approval thereof) became binding on the parties as a contract, and that the testimony therefore was within the rule just set out, and not within the exception thereto stated by appellee.

[2] The burden was on appellee to show a legal reason why appellant should not recover on the notes according to their tenor and legal effect. He failed to discharge the burden. The judgment therefore should have been in appellant’s favor for the amount of the notes. It will be reformed so as to adjudge a recovery in appellant’s favor against appellee of the sum of $345.10, instead of $64.01, and as so reformed will be affirmed.

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