54 Tex. 294 | Tex. | 1881
If the petition was defective, as appellant insists, for want of a proper averment of a consideration for his subscription upon which the action is founded, objection should have been taken to it by demurrer or exception. It is too late to attempt to do so after verdict by motion in arrest of judgment. Trammell v. Trammell, 20 Tex., 416.
The law does not require the contract or agreement, upon which an action is brought, to be set, oug in the petition in every minutia to authorize its introduction as evidence. The petition is sufficient if it sets forth the contract according to its true and legal import and effect as a whole. This appellee did, and had appellant made objection to the reading of the subscription in evidence, when offered by appellee, it should have been overruled. It appears from the bill of exceptions, however, that there was no objection made to the evidence on the trial below, but the objection really made, was the failure of appellee to set out the proviso to the subscription, to the effect
In our opinion the court did not err in sustaining appellee’s exceptions to appellant’s answer. It is not pretended that appellant did not know and fully understand the terms and conditions of the written contract or agreement into which he entered, that he was fraudulently induced to suppose that it contained other stipulations than what it did. Whatever may be said upon the subject prior thereto, it is an elementary principle, that when parties reduce a contract to writing, they are presumed to embody in it the terms and stipulations as finally agreed to, and upon and to which they mutually contract. Appellant sought in his answer to show that appellee, by the declarations and representations of its officers and agents, had agreed and undertaken to fix its depot at a different place from that at which it was subsequently located, or that appellant was induced by these representations and declarations to believe.that the depot would be thus located, and that appellee was thereby estopped from locating the depot where it did. To permit these propositions to be established by parol testimony, would be to vary and set aside a written contract-by parol testimony, which evidently cannot be done. Jackson v. Stockbridge, 29 Tex., 398.
It is absurd to suppose that the parties would have been guilty of the folly of entering into a written contract which, seemingly, gave appellee the privilege of locating its depot at the nearest practicable point within a mile of
It is somewhat difficult, if we look merely at the extracts from the charge of the court embodied in appellant’s assignment of error, to understand the precise point of Ms objection to it. If we properly understand it, however, it is this, to wit: The court did not instruct the jury, as appellant insists it should, that appellee was bound by the contract upon which it sued, to locate its depot at the nearest possible point to the court house at which it could be placed, without reference to the cost or expense of doing this. This, however, in our opinion, is not a fair or just construction of the contract. Appellee stipulated to locate its depot at the nearest practicable point, within one mile of the court house. How it .certainly needs no engineering skill or knowledge to know that the nearest possible point at which this could be done without regard to cost, would be the nearest point to the court house at which land for this purpose could be pm-chased or condemned. If this was what was intended, it was idle for appellee to have stipulated that the point at wMch it would establish its depot should be not more than a mile from the court house. Plainly the word “practicable ” was not used in this contract as synonymous with “possible,” but was used and understood by the parties to this contract in its usual and ordinary sense,
Affirmed,
[Opinion delivered February 11, 1881.]
