Smith v. Garrett , 29 Tex. 48 ( 1867 )

Coke, J.

The exceptions of the appellee to the answer of the appellant were properly sustained by the court below.

The writing indorsed on- the title bond is a promise or covenant by the appellee, Garrett, on the happening of a certain named contingency, not to enforce by suit the payment of the notes given for the land. In the absence of any evidence of the date of the execution of this writing, it not being dated, it is presumed to have been cotemporaneous with that of the bond on which it is indorsed, and a part of the contract of sale. A covenant not to sue may be plead in suspension of the action by the debtor whenever broken, and its observance will be enforced, and damages for the breach may be recovered. (Blair v. Reed, 20 Tex., 314.)

There is no breach of the covenant in this case shown in appellant’s answer. The covenant, together with the title bond on which it is indorsed, was filed as part of the answer. There is no allegation of fraud or mistake in the draught or wording of this writing. On the contrary, it is set up and relied on by the appellant as embodying the contract between herself and the appellee, in reference to its subject-matter. By this contract, the appellee binds himself, upon failure of the appellant, after proper cultivation, “to make crops,” &c., not to sue upon the notes. The answer alleges a parol agreement, that, upon failure of appellant to make “good crops,” &c., she should be exempt from suit, &c., and charges that she did fail to make “a good crop;” thus attempting to set up a eotemporaneous parol agreement which varies, in an important particular, the written contract on which she relies, and which he in no respect impeaches.

This, upon elementary principles, is clearly inadmissible, (Hunt v. White, 24 Tex., 643; 1 Greenl. on Ev., § 275.)

The covenant not to sue, as varied by the parol agreement set up, is alleged by the answer to be broken; but no breach is alleged of the agreement, as shown by the writing, which, in the absence of a proper impeachment, fixes the rights and liabilities of the parties. There is no error in the judgment, and it is

Affirmed.