Waggoner v. Magnolia Petroleum , 252 S.W. 865 ( 1923 )

I respectfully dissent. The parol evidence rule applies only in controversies between parties to the instrument, and those claiming under them. Johnson v. Portwood, 89 Tex. 235, 34 S.W. 597 (7), 600, 787; Hughes v. Sandal, 25 Tex. 162; 22 C.J. pp. 1291-1294, and authorities; 10 R.C.L. p. 1020; 3 Jones on Evidence (Horwitz) § 434, p. 155. The creditors of the Burk-Waggoner Oil Company were not parties to the deed, and I doubt whether they claim under it so as to come within the terms of the rule stated. Johnson v. Portwood, supra. But, conceding that they are privies to the deed, appellant Waggoner is not a party. The controversy is between the creditor and Waggoner, and the parol evidence rule has no application "in controversies between a party to the instrument on the one hand and a stranger to it on the other, for the stranger, not having assented to the contract, is not bound by it, and is therefore at liberty, when his rights are concerned, to show that the written instrument does not express the full or true character of the transaction; and, where the stranger to the instrument is thus free to vary or contradict it by parol evidence, his adversary, although a party to the instrument, must be equally free to do so." 22 C.J. 1292, 1293. See, also, other authorities cited above, and Vander Stucken v. Willoughby (Tex.Civ.App.) 242 S.W. 478, and Godwin v. Banister (Tex.Civ.App.) 242 S.W. 1098.