Preston v. Breedlove

Walker, J. This case is brought to this court on writ of error, and the following causes are assigned :— First. The court erred in rendering judgment for a certain number of dollars in specie,,, in violation of the legal tender act of the United States. Second. The court erred in overruling defendant’s motion for a new trial. Third. The court erred in sustaining plaintiff’s demurrer to defendant’s amended answer. Touching the first assignment of error, we may here remark that we have hitherto endeavored to follow the decisions of the Supreme Court of the United States, and in doing so our own decisions may not be entirely consistent with each other; but upon what is now held to be the doctrine of that court, we reaffirm the cases of the Central Railway Co. v. George, 32 Texas, 568, and Van Alstyne v. Sorley, Id., 518. This judgment was, then, erroneous. The defendant in error assumes that this is no ground for an appeal, inasmuch as this court has held that the judgment might be discharged by payment in legal tender currency. Had he suggested, on the record, his willingness to receive currency. in discharge of the judgment, we should have regarded the argument with favor, but a mere assertion contained in the brief,, that the defendant in error stands ready to receive currency, is-not binding and cannot be so regarded. It is unnecessary to notice the second assignment. The amended answers to which the demurrer was sustained,, aver'that the notes sued on were transferred after-maturity, with notice of dishonor, and also with notice of the- equitable defense against them. This averment was certainly good against the demurrer; and if the facts be proven, the equity must be allowed. There may be a question as to the propriety or legality of' admitting oral evidence to prove an agreement or understand [98] ing concerning the Roland lien. If the object and tendency of the evidence is to vary or control the original contract, it would not be admissible; but if the evidence tends to prove a verbal contract collateral to and contemporaneous with the written contract, though it refer to the same subject matter, and may affect the rights of the parties under the written contract, it may nevertheless be proven. The judgment of the District Court is reversed, and the cause remanded. Reversed and remanded.