ARCHER, Chief Justice.
Mrs. Floyd Smith, appellee, sued Angel Reyes, appellant in the court below, to recover the last five months’ rent alleged to be due under a lease contract dated January 29, 1952 of a' dwelling house located at 901 West 24th Street, Austin, Texas, and for attorney’s fees for the collection thereof as provided in said contract. The lease was for an original term óf sixteen months beginning February 9, 1952 and terminating June 9, 1953 for a total rental for said term of $1,280, payable at the rate of $80 per month in advance beginning February 9, 1952, all payments to be made to lessor at Buratti & Montandon Company, 719 Colorado Street, Austin, Texas.
Mrs. Smith also sued Mr. Reyes for damages alleged to have been done to the demised premises over and above ordinary wear and tear and for exemplary damages.
The appeal is before this Court on two points and are:
“The error of the court in rendering judgment for plaintiff for $326.00 damages for breach of contract and $32.60 attorney’s fees notwithstanding the verdict of the jury on Special Issue No. 5 and in refusing to enter judgment on the verdict of the jury.
“The error of the court in permitting plaintiff to interpose the defense of the statute of frauds in avoidance of her agreement to. cancel the lease contract sued upon.”
The case, was submitted to .the jury on five issues,
The first issue inquired if the defendant inflicted damages on the property over and beyond that which might result from normal wear and tear and the jury answered this issue in the affirmative.
In reply to Special Issue No. 2 the jury found that such damage was not inflicted with malice, and in response to Special Issue No. 3 the jury fixed the damages at $250. No exemplary damages were allowed.
Special Issue No. 5 and the jury’s answer is as follows:
“Do you find from a preponderance of the evidence that on or about the [824]*824latter part of the month of October, 1952, the plaintiff, Mrs. Floyd Smith, agreed to cáncel the lease involved in this cause ? Answer this Special Issue Yes or No.
“Answer: Yes.”
The plaintiff, appellee herein, filed motion for judgment non obstante veredicto on the grounds:
“1. That the purported rescission was by parol, not evidenced by any instrument of writing. That the contract sued upon was one coming within the purview of the statute of frauds, and under the decisions of our state, such contracts may not be rescinded by parol.
“2. That the contract of rescission, if any, was not supported by any valuable consideration passing from the defendant to plaintiff, and under the basic law of contracts, such consideration is essential to the validity of a rescission of the contract in question.
“That because of such undisputed and uncontradicted evidence, no issue of fact was raised for the submission to the jury of Special Issue No. 5, and that a directed verdict for the plaintiff upon this question would have been proper and should have been given.”
The prime question for determination is: Can a written contract for the lease of lands for more than a year be rescinded by parol evidence during the last year of such lease tenure ?
The contract between the parties was for a term of sixteen months beginning February 9, 1952 and terminating June 9, 1953 for a total rental of $1,280. The rental was payable in advance at the rate of $80 per month.
The appellant vacated the premises on November 14th, 1952, claiming that by a parol agreement the appellee rescinded the rental contracts as of November 9, 1952 and released him from all obligations under the lease, and in pursuance thereto appellant surrendered the premises to appellee.
Plaintiff by her second amended original petition filed a special exception, to wit:
“Special Exception No. 1: Plaintiff specially excepts to those allegations contained in Paragraph VI of defendant’s first amended original answer to the effect that plaintiff agreed to release defendant from his obligations under the contract sued upon herein for the reason that defendant does not allege that such purported agreement and release is evidenced by an instrument of writing, and hence, such alleged agreement and release, if not in writing, is insufficient in law to avoid such contract and does not constitute any defense to plaintiff’s suit because said contract has been held on the first pretrial hearing in this cause to be a contract coming within the purview of Art. 3995, V.A.[C.]S., commonly referred to as the Statute of Frauds, and contracts coming within the scope of said statute may not be modified or rescinded by parol, and plaintiff says, therefore, that said paragraph VI should be stricken from said answer, and of this special exception plaintiff prays judgment of the Court.”
The court overruled this as' well as all other special exceptions of the plaintiff, to which ruling the plaintiff then and there in open court excepted.
The trial then followed. The appellant stipulated that he did not pay rent for December 1952, or for January, February,, March and'April of 1953.
The appellant testified that he contacted' appellee late in October and in early November 1952 in an effort to get out of the lease, and at first appellee refused but later-released him and instructed him -to mail check to her named agents, and that he-called the agents. The witness testified that he paid the rent for November and also surrendered any claim to the deposit for the last month and noted on the check that: [825]*825it was last payment on house, as per agreement with Mrs. Smith. The check was cashed hy..the agents for-account of ap-pellee.
Mrs. Smith, appellee, testified that she never saw the check with the notation last month’s rent; that" she received payments for the rent from her agents; that MR Reyes came to see her and wanted to break the contract but she would not agree; that when he left he said “I will see my lawyer.” That at no time did "she agree to rescind the lease. ■
We believe that, by her special exception, appellee preserved her point to the effect that parol evidence may not be used to modify or rescind a written contract for a lease of lands, even when less than one year of the original term of the lease remains, and that the court properly entered judgment for appellee, notwithstanding the verdict of the jury in answer to special issue No. 5, since as a matter of law, the lease contract, being within the purview of the Statute of Frauds, could not be rescinded by parol" evidence. Cosey v. Supreme Camp of American Woodmen, Tex.Civ.App., 103 S.W.2d 1076, error dismissed.
The language of the contract for the lease of the premises is plain and unambiguous and cannot be modified by parol agreement. Article 3995, V.A.C.S. Gardner v. Sittig, Tex.Civ.App., 188 S.W. 731, affirmed, Tex.Com.App., 222 S.W. 1090; Levine v. Finkelstein, Tex.Civ.App., 80 S.W.2d 360; Robertson v. City Nat. Bank of Bowie, Tex.Com.App., Sec. B, 120 Tex. 226,
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ARCHER, Chief Justice.
Mrs. Floyd Smith, appellee, sued Angel Reyes, appellant in the court below, to recover the last five months’ rent alleged to be due under a lease contract dated January 29, 1952 of a' dwelling house located at 901 West 24th Street, Austin, Texas, and for attorney’s fees for the collection thereof as provided in said contract. The lease was for an original term óf sixteen months beginning February 9, 1952 and terminating June 9, 1953 for a total rental for said term of $1,280, payable at the rate of $80 per month in advance beginning February 9, 1952, all payments to be made to lessor at Buratti & Montandon Company, 719 Colorado Street, Austin, Texas.
Mrs. Smith also sued Mr. Reyes for damages alleged to have been done to the demised premises over and above ordinary wear and tear and for exemplary damages.
The appeal is before this Court on two points and are:
“The error of the court in rendering judgment for plaintiff for $326.00 damages for breach of contract and $32.60 attorney’s fees notwithstanding the verdict of the jury on Special Issue No. 5 and in refusing to enter judgment on the verdict of the jury.
“The error of the court in permitting plaintiff to interpose the defense of the statute of frauds in avoidance of her agreement to. cancel the lease contract sued upon.”
The case, was submitted to .the jury on five issues,
The first issue inquired if the defendant inflicted damages on the property over and beyond that which might result from normal wear and tear and the jury answered this issue in the affirmative.
In reply to Special Issue No. 2 the jury found that such damage was not inflicted with malice, and in response to Special Issue No. 3 the jury fixed the damages at $250. No exemplary damages were allowed.
Special Issue No. 5 and the jury’s answer is as follows:
“Do you find from a preponderance of the evidence that on or about the [824]*824latter part of the month of October, 1952, the plaintiff, Mrs. Floyd Smith, agreed to cáncel the lease involved in this cause ? Answer this Special Issue Yes or No.
“Answer: Yes.”
The plaintiff, appellee herein, filed motion for judgment non obstante veredicto on the grounds:
“1. That the purported rescission was by parol, not evidenced by any instrument of writing. That the contract sued upon was one coming within the purview of the statute of frauds, and under the decisions of our state, such contracts may not be rescinded by parol.
“2. That the contract of rescission, if any, was not supported by any valuable consideration passing from the defendant to plaintiff, and under the basic law of contracts, such consideration is essential to the validity of a rescission of the contract in question.
“That because of such undisputed and uncontradicted evidence, no issue of fact was raised for the submission to the jury of Special Issue No. 5, and that a directed verdict for the plaintiff upon this question would have been proper and should have been given.”
The prime question for determination is: Can a written contract for the lease of lands for more than a year be rescinded by parol evidence during the last year of such lease tenure ?
The contract between the parties was for a term of sixteen months beginning February 9, 1952 and terminating June 9, 1953 for a total rental of $1,280. The rental was payable in advance at the rate of $80 per month.
The appellant vacated the premises on November 14th, 1952, claiming that by a parol agreement the appellee rescinded the rental contracts as of November 9, 1952 and released him from all obligations under the lease, and in pursuance thereto appellant surrendered the premises to appellee.
Plaintiff by her second amended original petition filed a special exception, to wit:
“Special Exception No. 1: Plaintiff specially excepts to those allegations contained in Paragraph VI of defendant’s first amended original answer to the effect that plaintiff agreed to release defendant from his obligations under the contract sued upon herein for the reason that defendant does not allege that such purported agreement and release is evidenced by an instrument of writing, and hence, such alleged agreement and release, if not in writing, is insufficient in law to avoid such contract and does not constitute any defense to plaintiff’s suit because said contract has been held on the first pretrial hearing in this cause to be a contract coming within the purview of Art. 3995, V.A.[C.]S., commonly referred to as the Statute of Frauds, and contracts coming within the scope of said statute may not be modified or rescinded by parol, and plaintiff says, therefore, that said paragraph VI should be stricken from said answer, and of this special exception plaintiff prays judgment of the Court.”
The court overruled this as' well as all other special exceptions of the plaintiff, to which ruling the plaintiff then and there in open court excepted.
The trial then followed. The appellant stipulated that he did not pay rent for December 1952, or for January, February,, March and'April of 1953.
The appellant testified that he contacted' appellee late in October and in early November 1952 in an effort to get out of the lease, and at first appellee refused but later-released him and instructed him -to mail check to her named agents, and that he-called the agents. The witness testified that he paid the rent for November and also surrendered any claim to the deposit for the last month and noted on the check that: [825]*825it was last payment on house, as per agreement with Mrs. Smith. The check was cashed hy..the agents for-account of ap-pellee.
Mrs. Smith, appellee, testified that she never saw the check with the notation last month’s rent; that" she received payments for the rent from her agents; that MR Reyes came to see her and wanted to break the contract but she would not agree; that when he left he said “I will see my lawyer.” That at no time did "she agree to rescind the lease. ■
We believe that, by her special exception, appellee preserved her point to the effect that parol evidence may not be used to modify or rescind a written contract for a lease of lands, even when less than one year of the original term of the lease remains, and that the court properly entered judgment for appellee, notwithstanding the verdict of the jury in answer to special issue No. 5, since as a matter of law, the lease contract, being within the purview of the Statute of Frauds, could not be rescinded by parol" evidence. Cosey v. Supreme Camp of American Woodmen, Tex.Civ.App., 103 S.W.2d 1076, error dismissed.
The language of the contract for the lease of the premises is plain and unambiguous and cannot be modified by parol agreement. Article 3995, V.A.C.S. Gardner v. Sittig, Tex.Civ.App., 188 S.W. 731, affirmed, Tex.Com.App., 222 S.W. 1090; Levine v. Finkelstein, Tex.Civ.App., 80 S.W.2d 360; Robertson v. City Nat. Bank of Bowie, Tex.Com.App., Sec. B, 120 Tex. 226, 36 S.W.2d 481.
We are unwilling to hold that a written contract for the lease of land and premises for a period stated of more than one year does not in fact include the last six months of such term. Written contracts, within the Statute of Frauds, begin, continue and end with the dates and terms therein set out. Sanborn v. Murphy, 5 Tex.Civ.App. 509, 25 S.W. 459, affirmed 86 Tex. 437, 25 S.W. 610 by the Supreme Court; Hargrove v. Edmont Hotel Co., Tex.Civ.App., 125 S.W.2d 415.
We have been favored with well prepared briefs with many' authorities from other jurisdictions construing the Statute of Frauds in such States. No Texas case, other than those cited herein and cases cited in such, have been pointed out but we believe, that the'authorities and the statute herein set out are sufficient to sustain our position, and the general rule that a contract which is.in writing in accordance with-the statutory requirements may not be modified or rescinded by subsequent oral agreement between the parties, and parol evidence is inadmissible to affect such a contract or to vary any provison of it. 20 Tex.Jur., Sec. 6, p. 213; Robertson v. Melton, Tex.Com.App., 131 Tex. 325, 115 S.W.2d 624, 118 A.L.R. 1505; Chalk v. Daggett, Tex.Com.App., 257 S.W. 228.
We believe that appellee sufficiently plead the Statute of Frauds in her petition. She raised the issue by special exception and when the trial court overruled her exception she duly excepted to such ruling and preserved her rights to rely on the statute in an appeal.
The defense of the Statute of Frauds must be interposed by special exception, or by special plea or by objection to the testimony. Elam v. Barrett, Tex.Civ.App., 245 S.W.2d 765; American Cent. Life Ins. Co. v. Alexander, Tex.Com.App., Sec. A, 56 S.W.2d 864.
The judgment of the trial court is affirmed.
Affirmed.