Wagner v. Morris

EVANS, Chief Justice,

concurring.

I concur in the holding of the majority that the recent decision of the Texas Supreme Court in Karl & Kelly Company v. McLerran, 646 S.W.2d 174 (Tex.1983) did not change existing law with respect to the individual liability of a corporate agent for intentional misrepresentations. Thus, I agree with the statement of the majority that a corporate agent participating in a fraudulent act may be held individually liable, even though he performed such act as an agent for the corporation.

I also agree with the judgment of the majority that parol evidence of the alleged fraudulent misrepresentation was admissible in the case at bar. However, I do not agree that the decision of the Texas Supreme Court in Town North Nat’l Bank v. Broaddus, 569 S.W.2d 489 (Tex.1978) should be given the narrow construction indicated by the majority opinion. The general rule stated in the Town North case has long been the rule in Texas, and the rule applies to all written contracts, not merely to promissory notes. See, Indemnity Ins. Co. v. W.L. McMacatee & Sons, 179 Tex. 166 , 101 S.W.2d 553 (1937) and authorities discussed therein. When a deed contains contractual recitations regarding the terms of a vendor’s lien note given in payment for the conveyance, such recitations, absent circumstances of fraud, accident or mutual mistake, may not be impeached by parol testimony so as to destroy the unambiguous terms of the note and deed of trust. Kunkel v. Kunkel, 515 S.W.2d 941 (Tex.Civ.App.—Amarillo 1974, writ ref’d n.r.e.; See also, Small v. Brooks, 163 S.W.2d 236 (Tex.Civ.App.—Austin 1942, writ ref’d). An unconditional contract to pay a specific note according to its terms cannot be contradicted by evidence of an oral agreement to the contrary. Kane v. Union State Bank, 384 S.W.2d 358 (Tex.Civ.App.—Eastland 1964, writ ref’d n.r.e.).

If the provisions of the assumption agreement contained in the deed from Cottonwood Builders, Inc. to the appellants had specifically set forth the rate of interest in the note being assumed, or if the recorded deed of trust, to which the assumption agreement made reference, had specifically set forth such data, the appellants would, as a matter of law, have been placed on notice of the interest rate of the note they were assuming. Under such circumstances parol evidence of representations of a different rate of interest would have been inadmissible. Kunkel v. Kunkel, supra. As the majority opinion correctly points out, the Deceptive Trade Practices Act is designed to penalize those who misrepresent rights or obligations conferred by contract. Thus, in the instant case, parol evidence was admissible to show the making of the alleged misrepresentations since neither the deed nor the deed of trust charged the appellants, as a matter of law, with knowledge of the true facts of the matter they contend was misrepresented. Accordingly, I agree that the trial court’s judgment must be reversed and the cause remanded for trial as to the appellee G.D. Morris.