H. H. Self v. John King, 28 Tex. 552

Smith, J. —This suit was instituted 10th January, 1861, by the appellee, King, on the following instrument of writing, to wit: “Due John King one hundred head of sheep of the fol-following description: good average Texas-raised sheep, eighty-five ewes and fifteen wethers, for value received of him, this the 28th of Uovember, 1860. H. H.

Self.” The defendant answered that, although the writing is in the shape of a due-bill for the sheep, yet it was understood by the parties, and agreed by them at the time, that said sheep were not to be delivered until the spring of 1861, and that the writing was put in its present shape for the purpose only of an acknowledgment of indebtedness at that time of one hundred head of sheep, but that they were not to be delivered until the spring of 1861.

Hpon exception taken to the answer it was sustained, except as to the general denial, and the defendant brings the case to this court, and it is insisted that the court erred in that ruling.

When parties have reduced their contract to writing, which expresses the terms and character of it without uncertainty as to the subject or nature of the agreement, it is presumed that the writing is the repository, and contains the whole, of the agreement made between them, and hence the rule that no contemporaneous evidence is admissible to contradict or vary the terms of a valid written agreement. (12 Wend., 573.) The court may read a written document in the light of surrounding circumstances, which can be proved, in order to arrive at the true meaning and intention of the parties as expressed in the words used, but will not hear parol evidence of language or words other than those used by the parties themselves in the writing.

Ho other words are to be added to or subtracted from the written instrument. It is the duty of the court to interpret or to ascertain the true meaning of the words, or the true sense in which they were used by the parties.

And when the language of an instrument has a settled legal construction, parol evidence is not admissible to contradict that construction; as, for instance, when no time is stated when an amount of money specified in the writing is to be paid, the legal construction is that it is payable immediately, and parol evidence of a contemporaneous verbal agreement for payment at a future day is not admissible. (Warren v.

Wheeler, 8 Met., 97.) And when no specific time is fixed for the delivery of cumbrous property, it is the settled construction that it is payable within a reasonable time, which is generally a question of law, but often of law and fact. (2 Greenl., 249; 1 Hawk., 41 4 Sheply, 164.) And the admission of parol evidence that a certain day was fixed by the parties by verbal agreement, as contradistinguished from the written contract, would contradict it, and should not be received. Such is the rule laid down in the cases of Croker v. Franklin Hemp and Flax Manf. Co., 3 Sumner, 580; 12 Wend., 573; 5 Pick., 38; Id, 506.

It is not doubted that, after the reduction of a contract to writing, the parties may change it by a verbal agreement, based upon a valuable consideration, in many respects. The date of performance may be postponed, &c. Such testimony does not contradict or vary the original agreement in the sense of the rule laid down. It admits the agreement to have been as stated in the writing, but that it was changed subsequently by valid agreement of the parties.

In this case, the defendant attempted to show by parol evidence that the true contract of the parties, as made by them, is not expressed in the agreement, without averring that this variance was the result of fraud or mistake. It was clearly an attempt to vary the terms of the written agreement, and we are of opinion that the court below did not err in its rulings upon the point. As to the value of the sheep, there was some diversity of opinion among the witnesses, but the jury were well warranted in giving the highest value proved. There is no error in the cause, and the judgment is Aeeirmed with damages.