204 S.W. 379 | Tex. App. | 1918
In December, 1914, Susan Skeen brought suit against her husband, W. E. Skeen, for a divorce and partition of their community property. That suit resulted in a judgment denying the divorce and any division of the property. An appeal was prosecuted to the Court of Civil Appeals for the Fifth Supreme Judicial District, in which the judgment denying the divorce was affirmed, but the case was remanded for the purpose of litigating the right of the appellant to enforce a partition agreement which had been made. The facts are fully stated in the opinion by Chief Justice Rainey, found in
In the course of the trial testimony was admitted showing, in substance, the facts found by the court; that is, that the written agreement for the partition of the property was not to become binding upon either of the parties unless a judgment for a divorce was rendered; otherwise it was to be void. The errors assigned attack the ruling of the court in admitting that testimony, and also challenge the sufficiency of the legal evidence to sustain findings of fact upon which the judgment is based. It is contended that the admission of this evidence violates the rule which forbids the introduction of parol testimony to vary or contradict written instruments. There is a clear distinction between evidence tending to show when or under what circumstances a writing is to become effective, and that which contradicts the writing itself. Evidence of the former character does not come within the general rule which excludes parol evidence when in conflict with a writing. Burke v. Dulaney,
We are of the opinion that the judgment should be affirmed.