Roundtree v. Gilroy

Stayton, Associate Justice. This action was brought by the appellee against the appellant, to recover upon the following instrument in writing: “$433.33. Due G. Gilroy, on demand, four hundred and thirty-three dollars and thirty-three cents, for work building stone fence. This July 5, 1879. R. F. Roundtree.” The presiding judge having been of counsel, that fact being certified to the governor, A. W. Moursand was appointed special judge to try the cause. When the case was called for trial, the appellant objected to the trial of the cause by the special judge, upon the ground that he was at the time a member of the 17th legislature. The objection was overruled, and this is assigned as error. It is unnecessary for us to consider whether a person appointed special judge can be said to hold an office of emolument or not; for if so, this would not prevent a person holding another civil office of emolument from accepting such appointment; nor is it necessary for us to determine the effect of being appointed to, and accepting, a new office incompatible with the former one. Biencourt v. Parker, 27 Tex., 562. The special judge was qualified to try the cause. The jurors for the term of the court at which the cause was tried were selected for the second and third weeks of the court, at the beginning of the term, by jury commissioners then appointed, for some reason not shown by the record, they not having been selected at the preceding term; but the court continued in session longer than three weeks, and after that time the judge of the district appointed other jury commissioners, who selected jurors for the residue of the term, and upon a jury so selected being called to try this cause, the appellant challenged the array, upon the ground that the jury commissioners who selected the jurors were improperly appointed. The challenge was overruled, and that action of the court is assigned as error. If the court lasted longer than it was thought that it would when the first commissioners selected jurors, and it thereby became necessary to have other jurors than those first selected, it would have [180] been more regular to have reconvened the commissioners appointed ■at the first of the term, and for them to have selected such jurors as were necessary; but the course pursued was at most only an irregularity, from which it is not made to appear that the appellant suffered any injury. If, from any cause, juries are not selected in the manner and at the time provided by the statute, the courts are not without power to provide juries for the trial of causes. R. S., 3022, 3056. The statute provides how, and for what causes, a challenge to the array may be made. It provides that “any party to a suit which is to be tried by a jury, may, before the jury is drawn, challenge the array of jurors upon making it to appear that the officer summoning the jury has acted corruptly, and has willfully summoned jurors known to be prejudiced against the party challenging, or biased in favor of the adverse party.” R. S., 3074. ¡Neither of the grounds of challenge given by the statute were relied upon in this cause and none others exist, and the court did not err in overruling the challenge. In the defendant’s answer he pleaded that, prior to the making of the instrument sued upon, there was a parol agreement, by which it was agreed that $400 of the sum due should be paid with two alternate land certificates, each for six hundred and forty acres of land. To this part of the answer a demurrer was filed, and sustained, and this is assigned as error. There was no error in this ruling; for it is well settled that evidence of such prior or contemporaneous verbal agreements is not admissible to contradict, vary or add to a written contract. Self v. King, 28 Tex., 553. The instrument evidenced a contract to pay a certain .sum in money, and an agreement to pay in something else could not be shown. Appellant further set up in his answer that the instrument sued upon was given merely “ as evidence of a settlement, and not as an evidence of indebtedness. That plaintiff represented to defendant that he wanted said instrument sued on in plaintiff’s petition not as an evidence of indebtedness from defendant to plaintiff, but as a memorandum of settlement, as plaintiff said, so he, plaintiff, could see how he stood.” A demurrer was also sustained to this, and that ruling is assigned as error. There was no error in this action of the court; for the ' appellant did not allege that he was ignorant of the contents of the instrument which he signed, and that such ignorance was caused by any fraud of the appellee, or by any mistake of either party. [181] Having executed the paper, it is the evidence of the intention of the parties; and in the absence of such averments as would annul that instrument, no evidence could be heard to show an intention different to that which the law declares from the terms of the paper; hence a pleading intended as the basis for such evidence was bad. The appellant attempted to prove an agreement made subsequent to the execution of the instrument sued upon, by which the appellee agreed to receive the two land certificates as a payment of $400 on the debt sued upon. The appellee introduced evidence tending to show that no such agreement was ever made, and that issue was submitted to the jury and found against the appellant, and this would be conclusive of the question. Moreover, if such an agreement had been made, it would not defeat the action of the appellee, unless the appellant had delivered with proper conveyance the certificates, any more than the promise to pay money would defeat an action for the same if payment was not made. It is unnecessary to consider any of the other assignments of . error. The judgment is affirmed. Affirmed. [Opinion delivered May 9, 1882. Note.— The jurisdiction to try civil causes had been withdrawn from the county court of Llano county before this suit was brought.