Harper v. Kelley

1 White & W. 17

• Court: Court of Appeals of Texas
• Decided: April 23, 1877
• Docket: No. 97, Op. Book No. 1, p. 231
• Status: Published

Opinion

Opinion by

Ector, P. J.

§ 21. Suggestion of delay, effect of. The effect of a suggestion of delay by appellee on appeal is to open up the entire record, and requires a reversal of the judgment for any error apparent upon the face of it.

§ 22. Parol evidence,■ when admissible to vary written instrument. While, as a general rule, verbal evidence is not admissible to contradict or alter a written instrument, this rule does not exclude such evidence when it is introduced to prove that the written agreement is totally discharged. Neither is this rule infringed by the admission of oral evidence to prove a new and distinct agreement upon a new consideration, whether it be a substitute for the old or in addition to and beyond it. And if subsequent, and involving the same subject matter, it is immaterial whether the new agreement be entirely oral or whether it refer to and ¡martially or totally adopts the provisions of the former contract in writing, provided the old agreement be abandoned and rescinded. [Hogan v. Crawford, 31 Tex. 635; Smith v. Garrett, 29 Tex. 48; 1 Greenl. Ev. §§ 303, 304.]

Reversed and remanded.