Heatherly v. Record , 12 Tex. 49 ( 1854 )

Hemphill, Ch. J.

The only errors which will be noticed. are, 1st, the exclusion of the evidence to prove the substituted contract, and 2nd, the recovery of costs by the plaintiff.

There is no doubt, as a general rule, that parol cotemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument; but there is as little doubt that a new and distinct agreement, upon a new consideration, may be established by proof, whether it be a substitute for the old, or in addition to, or beyond it. Where the abandonment of the old contract is mutual, the new is valid either as a ground rof action or defence. (1 Greenleaf on Evidence, Sec. 303, 304.) There was error, therefore, in the exclusion of the witness who was offered to prove the recision of the old and the substitution of the new contract.

There was error also in allowing costs to the plaintiff.

The plaintiff’s demand, as estimated by himself, amounted to two hundred and ninety dollars. The defendant, in effect, alleges payment in corn to the amount of one hundred and ninety-three dollars and fifty cents, and that he made rails to the amount of twenty-five dollars. These claims must have been allowed by the jury, as the judgment amounts precisely to the balance after they are deducted. The payment in corn reduces the plaintiff’s demand below one hundred dollars, and consequently, even admitting that the old contract was valid and still subsisting, yet the defendant should have re ceived his costs. Judgment reversed and cause remanded.

Reversed and remanded.