Shaw v. Parvin

1 White & W. 154

Opinion

Opinion by

White, P. J.

§ 365. Contemporaneous instruments. Two or more instruments, executed contemporaneously between the same parties, in reference to the same subject matter, are deemed one instrument and one contract. [Dunlap v. Wright, 11 Tex. 597; Howard v. Davis, 6 Tex. 174; Alexander v. Baylor, 20 Tex. 560.]

§ 366. Parol evidence in connection with ivritien instruments. In general, parol evidence is not admissible to vary a written contract [Dewees v. Lockhart, 1 Tex. 535; Franklin v. Mooney, 2 Tex. 452; Stamper v. Johnson, 3 Tex. 1; Self v. King, 28 Tex. 552]; but such evidence is admissible to explain an ambiguity [Franklin v. Mooney, 2 Tex. 452; Hamman v. Keigwin, 39 Tex. 34], or to explain a writing, when the explanation is necessary, and the evidence is consistent with the writing [Bender v. Pryor, 31 Tex. 341], and to ascertain the intention of the parties, when doubtful [Smith v. Doak, 3 Tex. 215], or to explain the language or terms used. [Roberts v. Short, 1 Tex. 373; Epperson v. Young, 8 Tex. 135.]

May 9, 1883.

§ 367. Case tried by the judge without d jury. Where a jury is waived and the case is tried by the court, and there is a conflict of evidence, the court below being in a better attitude to weigh, pass upon and determine the evidence than this court can possibly be, its judgment, based upon the evidence, will not be disturbed.

Affirmed.