Belcher v. Mulhall & Scaling

Citations

• 57 Tex. 17
• 1882 Tex. LEXIS 83

Syllabus

<p>1. Contemporaneous parol agreement varying terms of written contract— Variance.— There was a written agreement between two parties that one would buy a specified number of beeves from the other, for an amount to be ■ paid for each beef delivered. The number was delivered, with the exception of a few retained at the request of the purchaser. The latter sued for damages for breach of contract, setting up a contemporaneous parol agreement, that the price paid for the cattle was so much for them, and so much in consideration that the vendor would use his influence to procure business for the vendee, and send him cattle in the future. The terms of the written contract were plain and unambiguous, and there was no allegation of fraud or mistake. Held, (1) Such contemporaneous parol agreement varied the terms of the written instrument, and should have been excluded by the court. (2) Evidence showing damage sustained by plaintiff, because of his failure to make a profit on the cattle, etc., was clearly inadmissible as irrelevant.</p> <p>2. See opinion for oral testimony which, had it been admitted, would have formed a contract different from that set up in the petition, and entitled defendant to a new trial, on the ground of variance.</p>