John P. Daggett brought this suit against J. W. Chalk upon two promissory notes, and against him and his wife to foreclose a mortgage upon a section of land in Motley county. Chalk entered a general denial, and pleaded that, at the time each of the notes was given, he and Daggett entered into parol contracts whereby certain previous partnership affairs between them were to be settled by an accounting, tbe amounts found to be due Chalk, as a result, were to bo credited on the notes, and the notes were not to be collected until the accounting was had. In order to define the first point involved in the case, it may be observed that the answer also pleaded that no accounting had been effected, averred certain amounts due to Chalk by Daggett arising out of the partnership affairs and by reason of a conversion of certain partnership property by Daggett, claimed some of the amounts as credits on, or by way of set-off against, the notes, and made appropriate allegations for an accounting. The conclusion of the answer contained a prayer for general relief. Plea in abatement by Daggett to the allegations of the answer for an accounting was overruled by the trial court, as were a general demurrer to the defensive matter,
The disposition of the exceptions in the light of the answer shows that all, except the misjoined, averments as to the allowance of credits on the notes, and as to the suit for accounting, were left undisturbed, and that those to the effect that the notes would not be collected until after an accounting was completed between the parties were, at least partially, excluded. The answer alleged consideration for each of the notes; and no question of want or failure of consideration is here raised or involved. No questions of fraud, accident, or mistake were pleaded, or are raised. While the allegations as to one of the notes could hardly be construed as being clearly to the effect that the agreement that was eliminated was oral, the case appears to have been tried below, and to be presented here in connection with the allegations of an oral agreement as to the other note, upon the theory and proposition that they were wholly to that effect. This view will be taken of them. A decision of the main point involved may be made without a discussion of the question of whether the plaintiffs in error, under the allegations which the trial court'allowed to stand, were actually deprived of the defense involved in the special exception, and of whether, upon a view of the whole record, the ruling of the trial court probably caused the rendition of an improper judgment.
The proposition submitted by plaintiffs in error is somewhat broader than the ruling of the trial court went. It is that, where a note ■ was not intended as a complete and final settlement of a whole transaction, the true amount owing from one party to the other not having been ascertained and an accounting being necessary to determine it exactly, allegation of an oral agreement for an accounting and the giving of proper credits on the note before it should be collected did not violate the rule against varying a written instrument by parol. They also argue that the true consideration of written contracts may always be established by parol.
They cite Allen v. Herrick,
Allen v. Herrick, cited by plaintiffs in error, was a ease where a note was given for a past-due debt, estimated at1 $3,640.20; whereas, the real debt for which it was given was only $2,140.20. To the extent of $1,500, the answer claimed a partial absence of consideration moving from payee to payor. As is usual with promissory notes, that phase or side of the consideration was not expressed! or mentioned in the writing. It was also a case in which an account, that “may have been an unliquidated demand,” was sought to be established as a set-off against the note and in which an application of set-off, as permitted in equity, was made. Much, if not all, of the reasoning which apparently conflicts with the opinion of the Court of Civil Appeals in this case, may be attributed to a showing of the necessary elements allowing set-offs in equity (see Simkins on Equity, 843-847, and 24 R. C. L. 857); to a misapprehension of the holding in Nalle v. Gates,
As to the allegation in the answer of plaintiff in error to the effect that Daggett knew he was indebted to Chalk in greater amount than that of the smaller note and that the note was given to obviate a threatened execution by a judgment creditor of both parties, it may be observed that, if the excluded defense should be viewed as asserting a contemporaneous oral obligation that the note would not be payable at all, it would be subject to the same principle applicable to a conditional payment, emphasized in extent but not in quality. Dolson v. De Ganahl,
The suggestion, upon the basis of Clayton v. Western National, etc., Co. (Tex. Civ. App.)
Clayton v. Western National Bank has been limited, by the judge, who wrote it, to accord with the above views, in the thoroughly considered case of Matheson, v. C-B Live Stock Co., above cited. The' same learned judge, meanwhile, had written the opinion in Watson v. Rice, which, in addition to what appears to be largely adverse dicta upon the point, has in it an element of fraud inseparable from the ojher. Allegation of fraud is not to be found in the case at bar.
Seabrook v. First National Bank of Port Lavaca (Tex. Civ. App.)
A parol contract to allow credits, entered into after the execution and delivery of a promissory note, would, in a suitable case, be admissible, Nalle v. Gates,
Plaintiffs in error also cite two cases holding that a note cannot be collected if its execution is accompanied by a parol contract which provides that it shall not become effective as an obligation until the happening of a stipulated event. Merchants’ National Bank v. McAnulty (Tex. Civ. App.)
From what has been said the holding, here, upon the rulings of the Court of Civil Appeals and of the trial court, as to each of the notes, will be summarized as follows: Answer to a petition upon a promissory note in usual form, after its maturity, that, at the time the paper was made and delivered, there was a parol contract bétween the parties to the effect that it should not be collectible until after they had had an accounting, and, upon such occurrence, was to be payable wholly or partly in credits to be deduced from the accounting, and that the latter event had not yet occurred, presented no defense; because it constituted an attempt by parol to vary the express, unconditional promise, contained in the writing, to pay a sum certain in money at a fixed future time.
The suit, beside being for recovery upon the two promissory notes, was for the foreclosure of a deed of trust, given for their security, upon a section of land in Motley county. The defense against the lien was homestead.
The Court of Civil Appeals affirmed the judgment for recovery upon both notes and for foreclosure of the mortgage against the section as to the smaller note, but reversed, as to foreclosure for the satisfaction of the larger note, upon grounds not related to the questions to be examined here. No complaint is made by defendant in error of the part of the judgment that was reversed. But complaint is made by his opponents that, in view of the fact that the trial court gave a peremptory instruction and that there was evidence that the section was homestead at the time the lien was given, the judgment of foreclosure should have been entirely reversed.
There was abundant testimony that plaintiffs in error had moved off the section and had acquired a home in the town of Matador seven years before the lien was given, had meanwhile removed the dwelling from the section onto other land, and, some three years before the date of such lien, had acquired a substantial home in the town of Roaring Springs. Moreover, the deed of trust recited that the section was not homestead. The evidence is conclusive that the family had not resided on the section for. seven years. The pleadings do not develop an issue of estoppel; but, with these facts standing alone and unexplained, the trial court would have been justified in taking the question from the jury. There cannot be two homesteads. Evidence of removal from a former to a new homestead, unaccompanied by evidence of an intention .on the part of the head of the family to return to the old, or make temporary his new, residence, presehts a case of abandonment. Bell v. Crabb (Tex. Com. App.)
But there is also testimony in the record on the part of Chalk and wife that Mrs. Chalk acquired the land in 1894 as a home section, that they desired to keep it as a homestead, that they lived upon it as such for many years, that she and Mr. Chalk were back and forth from Matador to the place during their residence at that town, moved to town “just for the purpose of schooling” their children, occupied the section “all the time” they were not living “in town to school the children,” were claiming the section as a home when Daggett visited Chalk some three years before the execution of the mortgage, and always claimed the section “for a homestead” and “never claimed anything else.” Daggett’s attorney, moreover, at the trial, elicited from Chalk testimony to the effect that the “homestead” was located upon the section at the time of the execution of the deed of trust. The mortgage recited, and one witness testified, that the town of Roaring Springs is upon the land in controversy. There is testimony that Chalk at some indefinite time had a “ranch” at Roaring Springs. He also testified that he engaged in the business of feeding cattle, but the location of his outfit for that purpose is not shown.
These facts were some evidence contrary to the theory of abandonment. If the residences in town were solely for the purpose of schooling the children, it is a fair inference that they were temporary and that their acquisition involved no intention to abandon the old homestead; and, if the section was acquired to b.e kept as a homestead, for many years was so used, and, to the exclusion of all other property, was always claimed as a homestead, it is a fair inference that there was an intention to return to it. If the head of the family was honest, this was a very reasonable inference. The decisions in Texas, almost without exception, concede, and never in any case that has been here cited or found deny, that, though the head of the house may move with the family to another place of abode and may acquire title to it, still, if the new homestead is temporary, the former homestead is not abandoned. The general rule in other states seems to be to the contrary. 29 Cyc. 944; 13 R. C. L. 654. But there is strong dicta in Texas in favor of the point. Gouhenant v. Cockrell,
The instructed verdict should therefore not have been given unless for another reason.
The Court of Civil Appeals held that there was neither pleading nor evidence identifying the part of the section that was homestead, and that therefore the defense was not sustained. However, both the answer and the evidence indicate that it could not be identified but that the whole section was used as a homestead. The former alleged that Mrs. Chalk “always reserved said section of land, * * * and that she and her said husband and their said children have used and enjoyed same as their homestead since the purchase thereof.” The direct evidence on the question was from Chalk, who testified with regard to the section, “My wife and I have occupied it all the time we haven’t lived in town to school the children,” and that the section was “the old home place.” A fair construction of both these and others parts of the answer and the testimony shows that the entire tract was used as a homestead and that as definite a description was given as the facts actually permitted. In such a case, while the rule may, or may not, be otherwise when “equity” must be offered by one seeking injunction against execution upon his homestead (Ellis v. Harrison,
All of the questions presented by the application and briefs have been discussed. We recommend that, as to the issues involving the lien and the foreclosure of the lien, the judgment of the Court of Civil Appeals (except as to the part of it partially reversing the judgment of the trial court) should be reversed, and the cause remanded for trial in the district court, but that in all other respects it should be affirmed.