11 Tex. 230 | Tex. | 1853
A copartnership, in the sale of merchandise, had existed between the appellant Horan, and the appellee. Long. It appears, from an agreement under seal, executed by both, that the appellant purchased out all the interest of the appellee, in the mercantile concern, assuming the payment of its liabilities. For the purchase, appellant paid some money, and to secure the balance, gave his two notes with O’Brien and O’Connell, as sureties. The two notes falling due at different times, the first note was paid, and a part of the second; but, not being fully paid, the suit was brought. The appellant Horan, in his answer, claimed that there was a mistake in the settlement, and that appellee had not charged himself, in the settlement, with indebtedness on his own personal account, that ought to have been charged; but he does not allege fraud, nor that there was any mutual mistake.
If the contract, under the seal of the parties, amounted to an estoppel, there was no error in the direction of the Judge. The appellant contends that the estoppel must be disregarded, because it does not appear to have been filed as an amendment, under the sanction of the Court. This objection would, perhaps, be considered well taken, if it did not appear that it had been acted upon by the Court, and decided that it should go to the jury under its instructions. This was a recognition of it, and supplied the necessity of an entry that it had been filed with the consent of the Court.
If this contract amounted in the opinion of the Court, when directing the jury, to an estoppel, it would follow, of course, that the jury should disregard the evidence of the appellant; and this brings us to the consideration, whether the appellants were estopped from opening the settlement made, and witnessed under their hands and seals. The proposition will not be controverted, that, to enable the appellants to open and go outside of the contract, it must be done on the ground of fraud or mistake; and this must be so averred by them, as to admit
The answer showed no grounds for letting in testimony, to entitle the party, on principles of equitable jurisprudence, to disturb the settlement made by the parties themselves.— Courts of law always refuse to hear parol testimony, to vary or alter the sense of a contract in writing, or in other words, written testimony. Courts of equity will let in such testimony, but it is always cautiously done, under some head of equitable jurisprudence; and it always requires it to be fully and clearly proved, to vary and control an executed contract.
To consider the answer in the nature of a cross bill, there seems to be substantial objections to it. If it were admitted that there had been a mistake, the party ought to seek the correction, without delay, as soon as the mistake is discovered, whilst all the circumstances are supposed to be fresh and more easily proved. He does not allege, in this case, at what time he discovered the supposed mistake; but he was slow in finding it out. He had made the cash payment under the contract, and paid the first note and part of the last one falling due; and nothing is said about this mistake, until sued for the balance. It is a little extraordinary, and hard to be be lieved, that he was then awaked to the fact, that there had
Judgment affirmed.