Birdwell v. Cox , 18 Tex. 535 ( 1857 )

Wheeler, J.

The alleged agreement not being in writing, and the counsel differing as to the existence of such agreement, the Court very properly refused to grant a new trial on that ground. Agreements of counsel, respecting the disposition of causes, which are merely verbal, are very liable to be misconstrued or forgotten, and to beget misunderstandings and controversies ; and hence there is great propriety in the rule which requires that all agreements of counsel respecting their causes shall be in writing, and if not, the Court will not enforce them. They will then speak for themselves, and the Court can judge of their import, and proceed to act upon them with safety. The rule is a salutary one, and ought to be adhered to whenever counsel disagree as to what has transpired between them.

But if the agreement in this case were admitted, no sufficient excuse was shown for not having made it the ground of an application for continuance. The defendants having suffered their cause to proceed to trial when they were not prepared, in consequence of a misunderstanding between themselves and their counsel, can not afford them a ground for a new trial. There is no error in the judgment and it is affirmed.

Judgment affirmed.