Reid v. Allen

| Tex. | Jul 1, 1857

Wheeler, J.

The Court did not err in sustaining exceptions to the answer. It asserted a verbal agreement, essentially different in its terms, from the written contract of the parties; it proposed, by parol evidence, to substitute a new and different contract for the one which was really agreed upon, as evidenced by the writing. The written contract stipulated for the payment of the money on a day certain. The answer proposed to prove, by parol, an agreement for the payment of the money at a different time from that stipulated in the contract. This would have been to vary the written contract, by evidence of a verbal understanding between the parties, at the time of making it, different from that which the writing expressed ; and would be plainly violative of the rule, that parol cotemporaneous evidence is inadmissible, to contradict or vary the terms of a valid written instrument. (1 Greenl. Ev., Sec. 275, 277, 281.)

The defendants sustained no injury by the refusal of the Court .to permit their amended answer to be filed. The matter pleaded was no defence to the action. The Probate Court had jurisdiction to order the sale of the land of the plaintiffs’ wards ; and the order of sale, the sale, and the confirmation of it by the Court, made good the title of the purchaser. The answer discloses no want of power in the Court to order and confirm the sale; and nothing in the proceeding to affect the title of the defendant Reid, to the land purchased. It discloses no ground for rescinding the contract, or resisting the payment of the purchase money. It would have been more regular to have permitted the answer to be filed, before sustaining exceptions to it. But the answer, if admitted without exception, could have been of no avail to the defendants. It did not constitute a legal basis for the rendition of judgment in their favor. The mere irregularity in practice^ therefore, having operated no injury to the defendants, is not ground for reversing the judgment.

The refusal of the Court to give further time to the defendants to amend their answer is not error, for two reasons. In the first place, it does not appear that they had any valid defence to plead by way of amendment; and, moreover, the application to delay the trial to give further time for amendment, was addressed to the sound discretion of the Court. It is the right of a party to amend his pleadings, subject only to the qualification that the amendment be proper in itself and in time. But it is necessarily subject to this qualification. Otherwise the trial might be delayed indefinitely, to the injury of the adverse party, and the hindrance of the administration of justice. (Lewin v. Houston, 8 Tex. R. 94.) There is no error in the judgment; and it is affirmed.

Judgment affirmed.