
    SCHWANTKOWSKY et al. v. DYKOWSKY.
    (Court of Civil Appeals of Texas.
    Nov. 23, 1910.)
    1. Evidence (§ 448) — Parol Evidence — Ambiguity.
    While parol evidence is inadmissible in the absence of fraud and mistake, to contradict or. change the terms of a written contract, where such a contract is ambiguous, parol evidence is admissible to show the agreement of the parties.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2066-2082; Dec. Dig. § 448.]
    2. Evidence (§ 450) — Paeol Evidence — Ambiguity — Contract and Deed.
    A vendor contracted in writing to convey “490 acres of land, part of” a specified league of land, “being the same premises sold to” the vendor by a specified deed recorded as stated, to which reference was made. The deed referred to conveyed to the vendor 490 acres of land, more or less, by metes and bounds, excepting the graveyard and right of way. The deed made by the vendor in pursuance of the contract also conveyed 490 acres, more or less, by metes and bounds, making the same reservations. Held that, the contract and the deeds were sufficiently ambiguous to permit evidence of a parol collateral agreement that the purchaser should' have the land surveyed after conveyance, and that for any shortage in quantity there should be an abatement of the purchase price.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 2066-2082; Dec. Dig. § 450.]
    3. Vendor and Purchaser (§ 176) — Shortage in Quantity — Eight to Abatement in Price.
    That a wife had joined with her husband in conveying over 400 acres of land, in 200 of which she could claim a homestead, in consideration that the purchase-price notes should be her separate property, and had not participated in any representations of the husband as to quantity nor in an alleged agreement of .his that the purchaser should have credit on the notes for shortage subsequently discovered, would not preclude the purchaser from asserting his right to such credit in an action by the wife and husband on all the notes, they falling due under the provisions' of the conveyance upon failure to pay interest on the first note, on the ground that the land was the wife’s homestead, where a shortage of only 36 acres was claimed, her homestead right not being affected, especially where the agreement as to shortage was a part of the consideration for the notes and it appeared that the wife was present and acquiesced in the agreement.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 333-340; Dec. Dig. § 176.]
    4. Appeal and Error .(§ 1001) — Keview — Findings op Fact.
    In an action by vendors on purchase-money notes, where defendant claimed that the sale was of a tract containing 490 acres more or less, with an agreement for an abatement in price in case of shortage in quantity, and plaintiffs claimed a sale in bulk and denied such agreement for shortage, a judgment determining such issue for defendant, upon competent testimony of both parties, will not be disturbed on appeal, where there is evidence sufficient to warrant it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3928-3934; Dec. Dig. § 1001.]
    
      5. Tendee (§ 12) — Sufficiency.
    The maker of a series of notes, payable at yearly intervals, which provided that, on any default in payment of principal or of the interest, the holder might declare the whole series due, made a tender, at maturity of the first note, of its amount and of interest on all the others except the last, claiming a credit, applicable to the last note, sufficient to satisfy it. The credit 'as finally determined was insufficient to meet the whole note. Held that, as interest was due on the balance, the tender was insufficient in amount, so that the holder could properly refuse it and elect to mature the whole series.
    [Ed. Note. — For other cases, see Tender, Cent. Dig. §§ 21-28; Dec. Dig. § 12.]
    Appeal from District Court, Washington County; Ed. R. Sinks, Judge.
    Action by Katherine Sehwantkowsky and another against Ignac Dykowsky. Judgment of dismissal, and plaintiffs appeal.
    Reversed and rendered.
    W. W. Searcy, for appellants.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   RICE, J.

It appears from the record that on the 10th day of October, 1907, William Sehwantkowsky, the husband of Katherine Sehwantkowsky, entered into the following contract with Ignac Dykowsky, for the sale to him of a certain tract of land near Chap-pell 1-Iill in Washington county, upon which he and his wife Katherine were then living, to wit:

‘‘State of Texas, county of Washington.

“Know all men by these presents: That I, Wm. Schwantkowski have this day bargained and sold to Ignac Dykowski, both of said state and county, 490 acres of land part of the D. Lawrence league of land in Washington county, Texas, being the same land sold to me by Mrs. O. P. Smith et al., Sept. 28th, 1891, recorded in book 25, page 114, deed records of Washington county, to which reference is here made and declared a part hereof upon the following terms and conditions, to wit: The above land is sold for $20,000 total consideration, $5,000 to be paid in cash on January 1st, 1908, by said Ignac Dykow-ski, and he to execute and deliver his notes for $15,000, in ten notes for $1,500 each, due on or before January 1, 1909, 10, 11, 12, 13, 14, 15, 16, 17 and 18 and 19 respectively, payable to said Schwantkowski et al., bearing interest at the rate of seven per cent, per an-num from January 1st, 1908, upon the delivery of a good and sufficient deed. The said Ignac Dykowski has this day deposited in the First Natl. Bank of Brenham the sum of $400, payable to the order of William Sehwantkowsky upon failure or refusal of said Ignac Dykowsky to comply with his part of the contract, said Wm. Schwantkow-ski is to credit this amount on cash payment of $5,000 to be made January 1st, 1908, the said Wm. Schwantkowski has this day executed his promissory note for $400 to Ignac Dykowski or order, due January 1, 1908, at Brenham, Texas, conditioned upon the said Wm. Sehwantkowski’s failure or refusal to comply with his part of this contract. Upon his complying with his part of said contract, said $400 note is to be null and of no effect. Should the said Wm. Schwant-kowski fail from any reason to make or deliver said deed as above mentioned to the said Ignac Dykowski, the money so deposited' in the bank is to be returned to the said Dykowsky and the said Sehwantkowsky $400 note is to become due and payable as against Schwantkowski. It is fully understood that upon failure of Dykowski to comply with his part of this contract the $400 deposited in the bank is to become the property of said Wm. Schwantkowski as a forfeit for failure to so comply and said note for $400 is to become null and void and of no effect.

“This Oct. 10th, 1907.
“[Signed] Wm. Sehwantkowsky. his
“Ignac X Dykowsky.” mark

That thereafter, on the 23d day of December, '1907, in pursuance of said agreement, the said Wm. Sehwantkowsky and his wife, Katherine, conveyed to said Ignac Dykowsky, by their warranty deed, the tract of land referred to in said agreement, in consideration of $20,000, $5,000 of which was paid them in cash, and the execution and delivery to the said Katherine of his (Dykowsky’s) 10 vendor’s lien notes, each for the sum of $1,500, due respectively on the 1st of January, 1909, 1910, 1911, 1912, 1913, 1914, 1915, 1910, 1917, and 1918, payable to the order of the said Katherine Sehwantkowsky, each bearing interest at the rate of 7 per cent, per annum from January 1, 1908, interest payable annually, and each providing that in the event of failure or refusal on the part of Dykow-sky to pay any one of said notes when due, or any installment of interest thereon, that the owner and holder of said notes would have the right to mature any and all of them, said notes providing for 10 per cent, attorney’s fees, in the event they were placed in the hands of an attorney for collection. The deed from Mrs. O. P. Smith and others to Wm. Sehwantkowsky, referred to in said contract, conveyed 490 acres of land, more or less, by metes and bounds, excepting the graveyard and right of way out of said conveyance; and the deed from Wm. Schwant-kowsky and wife to Dykowsky also conveyed 490 acres, more or less, by metes and bounds, making the same reservations as to the graveyard and right of way.

A controversy arose out of this transaction, based on a shortage in said tract of land so conveyed. It was claimed on the part of Dykowsky that at the time of making and entering into the contract and agreement hereinbefore set out, as well as prior to and at the time of the execution of the deed above referred to, that Wm. Schwant-kowsky agreed that if there was a shortage in said tract of land, that the amount thereof should be applied as a credit or payment upon the last note given by him in part payment for said land. Appellants, on the other hand, denied that any such agreement was ever made, but claimed that the land was sold in solido, or in bulk, for $20,000 to said Dykowsky. On the maturity of the first note, Dykowsky tendered to appellants, the holders of said notes, the amount due thereon, together with interest on all of the other notes, save and except the interest due on the last note, to wit, that maturing January 1, 1918, and refused to pay the interest on it, on the ground that there was a shortage in the land sufficient in amount, at the price paid, to pay off and satisfy said note; and that, therefore, there was no interest due thereon. In March, 1908, prior to the institution of this suit, Dykowsky brought a suit in the district court of said Washington county against appellants wherein, in his amended petition, he set up that when he bought the tract of land above referred to from appellants that both he and Wm. Schwant-kowsky were under the belief that the same contained 490 acres, but that it was agreed between them that as Schwantkowsky and wife desired to remove immediately to California, that he, Dykowsky should thereafter have the land surveyed, and that in the event it was ascertained that the same did not exceed or fall short more than two acres of said amount, that then it would make no difference in the price to be paid; but that if the shortage should exceed two acres, then the amount of such shortage should be credited upon the last note executed by him in payment for said land, at the rate paid therefor per acre. It was further alleged that said land had been surveyed by him in pursuance of said agreement, and that the same had fallen short a little over 36 acres, and that he was entitled to have said shortage, amounting to $1,503.16, credited upon said note. In a different count it was alleged by Dykowsky in said suit that Schwant-kowsky knew at the time of the making of said contract and conveyance that said tract of land did not contain 490 acres, but represented to him that the same did so contain 490 acres, and that upon an actual survey it was found to be short a fraction over 36 acres, which he was entitled to have credited upon said note; that he relied upon said representation so made by Schwantkowsky, and was induced thereby to execute said agreement and purchase said land. This last-mentioned suit was pending at the time the present suit was filed. Thereafter, on the 9th day of January, 1909, appellants brought this suit in said district court to enforce the collection of all of said notes, upon the ground that the failure and refusal on the part of Dykowsky to pay the interest on said last note had matured the entire series of notes, and that by reason of an agreement between Wm. Schwantkowsky and his wife, Katherine Schwantkowsky, at the time of the making of said conveyance and the execution of said notes, that the same had become and were her separate property. In answer thereto, appellee filed a plea in abatement, to the effect that suit had been prematurely brought, for the reasons hereinbefore set out, and asked that the same be dismissed. This plea, however, did not contain any allegation of mutual mistake between the parties nor fraud on the part of appellants by which he was induced to purchase the land, but simply set up the fact that at the time the contract for the sale of the land was made, and at the time of the execution of the deed by appellants to him, said Wm. Schwantkowsky agreed that appellee might have the land surveyed, and, in the event of a shortage therein, the same should be credited upon the last note given in payment therefor, likewise setting up the shortage, as subsequently ascertained, as well as the tender as above stated. Both the present case and the case brought by Ignae Dykow-sky against appellants hereinbefore referred to were tried on the same day by the court without a jury, and separate judgments rendered therein, by which, in the instant case, the plea of abatement was sustained and the ease dismissed at appellants’ cost; and in the case brought by said Dykowsky against appellants to have the amount of the shortage applied as a credit on the last note, judgment was rendered finding that there was a shortage in the land to the amount of 25 acres, which at the price to be paid per acre, $40.81, amounted to the sum of $1,020.25, which was allowed as a credit upon said last note, from both of which judgments appellants have appealed.

The cases were not consolidated by the trial court, but since the litigation arose out of the same transaction, and the facts in the one are exactly similar to those in the other, there being only a slight difference heretofore noted in the pleadings of the parties, we will endeavor in the present opinion to determine the law arising upon both appeals. It is insisted by appellants in the instant case, a suit to enforce the collection of the notes, that the court erred in sustaining the plea in abatement and dismissing the suit, assigning as a reason therefor the action of the court in permitting appellee, over their objection, to introduce the testimony of himself and another witness, to the effect that Wm. Schwantkowsky, prior to the execution of the contract and deed, agreed with appellee that he might have the land surveyed, and in the event of a. shortage therein, that the amount thereof should be credited upon the last note, contending that, in the absence of an allegation of fraud, accident, or mistake, it is not permissible, by parol testimony, to contradict, vary, altev, or change the terms of the written contract. This doctrine is elementary and is illustrated by numerous authorities in our own state, among which are the following: Lynch v. Ortlieb et al., 70 Tex. 730, 8 S. W. 515; Belcher v. Mulhall, 57 Tex. 17; Self v. King, 28 Tex. 553; Milliken v. Callahan County, 60 Tex. 210, 6 S. W. 681; Jones v. Risley, 91 Tex. 7, 32 S. W. 1027; Rubrecht v. Powers, 1 Tex. Civ. App. 282, 21 S. W. 318; Weaver v. City of Gainesville, 1 Tex. Civ. App. 286, 21 S. W. 317; Willis Bros. v. Byars, 2 Tex. Civ. App. 135, 21 S. W. 320; Loonie v. Tillman, 3 Tex. Civ. App. 332, 22 S. W. 524. But this doctrine does not apply where the instruments under consideration are ambiguous, in which event it would be competent to introduce evidence showing, or tending to show, what in fact was the agreement of the parties. The instruments in the present case are, in the opinion of the majority of the court (not concurred in by the writer, however), considered so ambiguous as to authorize the introduction of the testimony complained of, for which reasons we overrule this assignment, and hold that the testimony was properly admitted.

Appellants also insist that the court erred in sustaining the plea in abatement, because it was alleged and shown by them that the notes sued upon were the separate property of appellee Katherine Schwantkowsky, since it was agreed between her and her husband, at the time of the transaction in question, that if she would join in the execution of said conveyance, the same being her homestead, then and in that event said notes should become her separate property; and it being alleged and shown that she had not participated in the representations and agreement claimed to have been made by her husband to and with said Dykowsky, and it appearing that she had joined in said conveyance by reason of said promise on the part of her husband, that she was in nowise bound thereby. Wherefore, she was entitled to recover upon said notes, for which reason it was error to sustain said plea in abatement and dismiss said cause — citing in support of this contention the following authorities: Luzenberg v. Bexar Bldg. Ass’n, 9 Tex. Civ. App. 261, 29 S. W. 237; Fant v. Wickes, 10 Tex. Civ. App. 394, 32 8. W. 126; Blum v. Light, 81 Tex. 414, 16 S. W. 1090; Gatewood v. Scurlock, 2 Tex. Civ. App. 98, 21 S. W. 55; Burnham v. McMichael, 6 Tex. Civ. App. 496, 26 S. W. 887; Wadkins v. Watson, 86 Tex. 194, 24 S. W. 385, 22 L. R. A. 779; Speer on Married Women, § 68. We do not believe, however, that the doctrine asserted in said cases is applicable to the case at bar, for the reason that Mrs. Schwantkowsky could only claim homestead in the tract conveyed to the extent of 200 acres; and it appears that there was more than 200 acres in excess of the homestead, the notes for which would aggregate more than $9,000. Nor do we believe that the husband could, by gift or otherwise, defeat the rights of the purchaser of the land to have the shortage applied as a credit on said notes, especially so, since her rights in the proceeds of the homestead would not be affected thereby. Besides this, the agreement as to shortage was a part of the consideration for the notes, and it was shown that she was present and acquiesced in the agreement, for which reason the assignment presenting this question is overruled.

In both suits appellants replied by supplemental petition to the effect that the sale was not by the acre but in bulk for $20,000, and denied making the agreement pleaded by appellee; and this issue in this as well as the Dykowsky Case was fully considered by the court upon testimony offered by both sides. And since this evidence was properly admitted in that case, because of the allegations of mistake and fraud, it would seem that the judgment of the court determining this issue in favor of Dykowsky must be regarded as settling the controversy between them, where the evidence is sufficient to warrant the judgment; for which reason the judgment in that case, we think, should not be disturbed.

It will be recalled, however, as applicable to the instant case, that, according to ap-pellee’s contention, he only had the right to have the amount of the shortage allowed as a credit upon the last note. The court found that this shortage amounted to $1,020.25, not enough to pay off and satisfy the last outstanding note. So if, as found by the court, appellee was entitled to a credit of $1,020.25 on this note, and as this amount, in our judgment, should have been credited upon the principal as of date of the note, then, as this fell short of paying off the note in full, it is evident that there was due appellants interest on the balance unpaid of said note at the time the tender pleaded by appellee was made; and as said tender did not include the amount of such interest upon said balance, then the same was not in fact a tender of the whole amount due by appellee to appellants, for which reason they were justified in refusing to accept the amount so tendered and to institute this suit.

Wherefore, we think the court erred in sustaining the plea in abatement and dismissing the suit, for which reason we now here reverse the judgment of the court below and render judgment in favor of appellants for the full amount of said notes and interest due thereon, less the sum of $1,020.-25, found by the court as the value of the shortage in said land.

Reversed and rendered.  