Lee v. First Nat. Bank of Purdon , 254 S.W. 394 ( 1923 )

I agree with the disposition of this case as made by Judge O'QUINN in the foregoing opinion, and also agree with all legal conclusions reached, as shown by the opinion, save one.

I do not think it was permissible for appellant to plead, as he did by his trial amendment, that, at the time the note and mortgage in this case were executed, it was orally agreed that the bank was to look primarily to the security afforded by the mortgage for payment of the note, and that appellant was to be held liable as surety or, the note in the event only that enough could not be realized by a sale of the mortgaged property to pay the note. Such oral agreement, if permitted to be shown, would, in my opinion, have the effect to vary the terms of the written contract between the parties. There is no question that the mortgage and note which were executed at the same time purport to constitute a full, complete, and enforceable contract in writing, and by that contract appellant's liability on the note as surety is not secondary, but is primary — is not conditional, but is absolute, in the event the note should not be paid by the maker. If the alleged oral contemporaneous agreement should be permitted to be shown, its effect would be to make appellant's liability as surety on the note only secondary, and the property covered by the mortgage would have to be looked to as the primary surety and security for the payment of the note.

I shall not attempt a discussion of the authorities on the point, but merely refer to the comparatively recent case of Waters v. Byers Bros. Co. (Tex.Civ.App.) 233 S.W. 572. In that case, the general rule is reiterated and reaffirmed, to the effect that a contemporaneous parol agreement between parties to a written contract, which appears on its face to be a full and complete contract, cannot be shown, if to do so would have the effect to contradict or vary the terms of the written contract. Practically all of the Texas cases on the point are there cited, and many of them discussed. I have carefully read many of the cited cases in that opinion, especially those of our Supreme Court, and have reached the conclusion that the majority opinion in the case correctly applies the general rule on the point here under consideration, and in accordance with the view I have above expressed.