| Tex. | Jul 1, 1877
This suit was brought in the name of Dudley Thomas and John and Thomas Wollard, for the use of Travis Hensley, on a promissory note for $1,000, executed by Asher P. Hammond, April 26, 1866, payable September 1, 1868, to Jonathan Miles or order, bearing ten per cent, interest from date, expressing on its face that it was secured by lien on the lands for the purchase-money of which it was given; which note was, on the day of its date, indorsed to the order of the plaintiffs. The petition claimed that the note was given in part payment for four hundred acres of land, made up of different tracts, and sought to enforce the lien thereon, except on forty acres sold under a previous order-of sale on another of the purchase-money notes, and except another tract of sixty-seven and six-tenths acres, which had been recovered of Hammond by paramount title. An amended petition sought to charge so much of the land as had been conveyed by Hammond to Mrs. L. F. Buby, she and her husband being made defendants. ■
The answer set up that the note sued on was the last installment of $4,000 for lands sold by Miles to Hamroond-p
The charge of the court submitted to the jury the contested question of fact as to the purport of the alleged agreement, and instructed the jury that if they found the agreement to be as alleged in the answer, that the measure of damages was the value of the sixty-seven and six-tenths acres lost at the time of the eviction. There was a verdict and judgment for defendants, from which, after motion for new trial overruled, plaintiff appealed.
The two leading questions presented by the assignment of errors are:
1. The admissibility of parol evidence of the agreement set up in the answer.
2. The measure of damages under that agreement.
It is contended by appellant, 1st. That the contract had been reduced to writing in the deed, and notes passed between the parties, and that to admit parol evidence of the agreement set up in the answer would be in violation of the rule that such evidence is inadmissible to contradict or vary the terms of a written instrument. 2d. That the alleged agreement was void under the statute of frauds, as not to he performed within one year. It might be answered, that there is no bill of exceptions to the admission of the evidence now objected to, and that the attempt to present the same points, by exceptions to the answer, cannot avail plaintiffs, because, in fact, there was no express averment in the answer that the agreement alleged was verbal, and because the exception was based on the assumption, not borne out by the record, that the deed was then before the court, and that the
In»regard to the objection, that the alleged agreement was not to be performed within one year, it is to be observed, that it does not appear from the agreement, as alleged, or as testified to, that it was not to be performed within a year; but that at most it was an agreement which might or might not be performed within a year, and was not therefore required by the statute of frauds to be in writing. (Thouvenin v. Lea, 26 Tex., 614, and authorities cited.)
In regard to the other point, which is the one on which we have had difficulty, we are of opinion that the deed and notes are but parts of a more comprehensive transaction, the terms of which are not attempted to be expressed in those instruments. Mr. Greenleaf says, that the rule, that “parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument,” does not apply “where the original- contract was verbal and entire, and a part only of it was reduced to writing.” (1 Greenl. on Ev., Redf. ed., sec. 284a.) This subject is discussed at length in an able opinion, delivered by Chief Justice Lowrie, of the Supreme Court of Pennsylvania, in which the following rule is deduced from the authorities: “If the matters alleged are, for the purposes of the given suit, a proper part of the transaction to be investigated, and the law does not directly forbid such matters to be proved by parol, and the parties have instituted written evidence of only parts of the transaction, not including the parts proposed to be proved orally, then the evidence is entitled to be heard.” (Miller v. Fitchthorn, 31 Penn. St., 260.) In that case, Miller was sued on his
The defendant probably relied somewhat on the arrangement that the money and notes were to go into the hands, not of Miles himself, but of the attorney of plaintiffs as well as of Miles, and who, according to defendant’s version of the agreement, could apply no part thereof to the plaintiffs, until he had first extinguished the prior liens and claims. This agreement as to the application of the purchase-money by the vendor Miles, to be carried out by the attorney of Miles and of the plaintiffs, was certainly so far out of the ordinary course, that its omission in the deed is not a matter of. surprise. It has been held that where land is conveyed, and upon such conveyance it is agreed that the grantee shall pay to the grantor all that he obtains upon a resale over and above the sum paid upon the original conveyance, an action may be maintained upon such an agreement, though not in writing, for the balance, when the land is resold for more than was paid. (Graves v. Graves, 45 N. H., 323; Hall v. Hall, 8 N. H., 129.) The alleged agreement in the case before us is so far distinct from and collateral to that part of the contract reduced to writing, as to allow of its establishment by parol evidence. The principle on which such evidence is admissible was recognized by this court in the case of Cox v. Bray, 28 Tex., 259. Bray had made a power of attorney, authorizing D and F, as his attorneys, in his name, to locate his headlight certificate, and receive from the Government the necessary patent and title, and for him and in his own name to execute sufficient conveyances for the same. The proposal was to prove by parol testimony that there was in fact a sale of the certificate by Bray to I) and F, and it was held competent to do so. The court say of the power of attorney and the sale: “ They are collateral and independent facts, entirely consistent with each other, but together pre
It is to be observed, that in this State the rule is settled that it is not necessary that the consideration of a contract for the sale of lands or to pay the debt of another, should be expressed in writing. (Adkins v. Watson, 12 Tex., 199" court="Tex." date_filed="1854-07-01" href="https://app.midpage.ai/document/adkins-v-watson-4888028?utm_source=webapp" opinion_id="4888028">12 Tex., 199; Ellett v. Britton, 10 Tex., 208" court="Tex." date_filed="1853-07-01" href="https://app.midpage.ai/document/ellett-v-britton-4887787?utm_source=webapp" opinion_id="4887787">10 Tex., 208.) So also that parol evidence is admissible to establish a trust in lands. (Chilson v. Reeves, 29 Tex., 280; Leakey v. Gunter, 25 Tex., 403" court="Tex." date_filed="1860-10-15" href="https://app.midpage.ai/document/austin-v-ewell-4889842?utm_source=webapp" opinion_id="4889842">25 Tex., 403.)
It does not appear to have been contended that the alleged agreement was one coming within any other provision of the statute of frauds, except that in regard to contracts not to be performed in a year. The cases cited by appellant as most nearly in point, are either distinguishable from the present case in their facts, or are in States where the statute of frauds is different or differently construed from ours. Duncan v. Blair, 5 Denio, 196" court="N.Y. Sup. Ct." date_filed="1848-01-15" href="https://app.midpage.ai/document/duncan-v-blair-5465517?utm_source=webapp" opinion_id="5465517">5 Denio, 196, is of the latter class, and Timms and Wife v. Shannon, 19 Md., 296" court="Md." date_filed="1862-12-19" href="https://app.midpage.ai/document/timms-v-shannon-ex-rel-shannon-7891618?utm_source=webapp" opinion_id="7891618">19 Md., 296, is of the former, being a case where the conveyance as executed contained special covenants, and being also a case where there was an innocent purchaser to be protected.
By the charge of the court, the measure of damages was fixed at the value of the land, but at the time of eviction. The court seems to have regarded the agreement set up as equivalent to a covenant against incumbrance. In case of breach of such a covenant, the measure of damages is the actual value of the particular lot of land lost, as compared with the balance of the land, assuming the price agreed upon by the parties is the value of the whole. (Raines v. Calloway, 27 Tex., 678" court="Tex." date_filed="1864-07-01" href="https://app.midpage.ai/document/raines-v-calloway-4890202?utm_source=webapp" opinion_id="4890202">27 Tex., 678.) But the agreement set up in this case is not to warrant against incumbrances—a covenant which binds the maker at all events to protect the vendee against incumbrances. The purport of the agreement, in so far as alleged to be violated, is simply to pay, or appropriate, so much of the purchase-money as was necessary to buy up Coleman’s claim; and the averment was that Coleman’s claim could have been
Reversed and remanded.