Perry's Administrator v. Smith

Citations

• 34 Tex. 277

Syllabus

<p>An undated written contract between P. and certain attorneys stipulated that “ when the title to the league of land lying on the Lavaca, •claimed by the heirs of Hibbens, is cleared of all litigation made by said heirs,” then the attorneys, “ who have attended to the management of said suit, and who are -.still to .continue to do so,” should be entitled to an undivided fourth of the league. The plaintiff, claiming as assignee of the attorneys, sued P.’s administrator for specific performance, and. ■for partition. The defendant answered that the attorneys failed to perform their part of the contract, and thereby forced defendant and his •intestate to employ other counsel at an outlay of over $3100 ; that the original parties to the contract understood it to bind the attorneys to ■clear the land and title of all adverse claimants under the Hibbens title, which the attorneys failed to do, and thereby the defendant, besides the ■said outlays to counsel, was forced to buy out an adverse claimant at a ■further outlay ol $500; and that the plaintiff, if entitled to recover at ail, was liable for his proportion of these outlays. To these answers the plaintiff excepted, on the ground that they sought to vary the terms of ■the wriiten contract. Held, that it was error to sustain the exceptions ; ■that the defendant was entitled, by evidence dehors the instrument, to prove its data, explain and make certain its indefinite stipulations, and ascertain on what consideration, if any, it was based. Held, further. that the plaintiff, if entitled to recover, is bound to contribute to such ■necessary outlays as the defendant and his intestate had made for the protection and care of the land-; and therefore it was error to sustain ■the exceptions and decree in favor of the plaintiff without contribution by him.</p>