Womack v. Wamble McArthur

The deed from appellees to appellant, in consideration of a recited payment of $300 cash, conveyed to appellant the lot of ground and the right to extend their wall forty feet back from the end of the building owned by appellees. It did not undertake to state what appellant was to do in return for this grant, further than it recited a cash consideration. It is therefore like an ordinary deed conveying property, or conferring a right or privilege, which designates what right is conveyed, but does not express the undertaking of the other contracting party. Hence it is not inconsistent with its terms to prove by parol what obligation the grantee assumed.

In this it differs from the cases cited by the appellant, in which the instrument stated what was the undertaking or obligation of the party sought to be charged by parol. In such cases the instrument is held to express the whole of the contract, and can not therefore be varied or added to by parol evidence. Weaver v. City of Gainesville, 21 S.W. Rep., 317; Willis v. Bryan, Id., 321; Belcher v. Mulhall et al.,57 Tex. 19; Railway v. Garnett, 52 Tex. 133 [52 Tex. 133]; Railway v. McKinney, 55 Tex. 176 [55 Tex. 176]; Railway v. Pfeuffer, 56 Tex. 71.

A contract may be partly written and partly oral. The obligations on one side may be all in writing, while those on the other may be wholly oral. Such is often the case when one party makes a deed upon consideration of some undertaking by another.

That the recital of a moneyed consideration will not exclude proof of another and additional consideration, is well settled. Taylor v. Merrell, 64 Tex. 494.

The statement of the account sued on was sufficient to admit proof.

There was no substantial difference between the statement given by the witness McArthur, when called to restate to the jury his testimony given during the trial, and the statement which he was asked to repeat.

Affirmed.