Wright v. Hays

Citations

• 34 Tex. 253

Syllabus

<p>1. Defendant and one H. entered into a written contract by which defendant agreed to convey to H. forty acres of land, designated by metes and bounds,'as soon as patent should be obtained ; and H., upon his part, agreed to pay defendant fifty cents per acre for the land. H. transferred the contract to the plaintiff, who sued, defendant for specific performance, tendering the fifty cents per acre in court, and alleging that the patent had been obtained, but that defendant refused to convey. Defendant answered to the effect that, at the time the written contract • sued on was executed, he and H. agreed to an exchange of lands, by . which defendant was to give to H. the forty acres described in the written contract, for certain other forty acres which were then vacant land, and which H. was to locate and secure, and they were to exchange deeds as soon as patents should be obtained; that the exchange was not stipulated in' the written contract, because the land was still vacant which II. was to give to defendant, and H. expected to secure it at a cost of not more than fifty cents per acre, the nominal sum specified in the written contract. Held, that this answer attempted to vary the written contract by a contemporaneous parol contract, and that exceptions to it for that reason were properly sustained—no principle being better settled than that which forbids the introduction of parol evidence to vary or contradict the terms of a written instrument.</p> <p>2. The common practice of assigning as error that “ the court erred in overruling the motion for a new trial,” is open to the objection that no error is thereby specifically pointed out.</p> <p>3. The contract of a married man to convey the homestead of himself and wife is not-tmlawful, although a specific performance of it cannot be decreed so long as the wife lives and the property remains the homestead. Damages for non-performance might be recovered against him during the life of the wife; and if she should die a