I concur in the disposition made of this appeal by Judge KLETT. Aside from the legal conclusion expressed by Judge S. A. L. Morgan that the title to the property passed when at the director's meeting it was agreed that Green and Waggoner should take over the property and assume the debts of the Burk-Waggoner Oil Corporation, there is no evidence to support the trial court's findings of fact numbered 7, 8, and 10, set out in full in Judge KLETT'S opinion to the effect that Green took the property for the benefit of himself and Waggoner; that it was delivered to him upon the direction of Waggoner, and that the written assignment was the consummation of the oral agreement made at the directors' meeting. It is true that the testimony of Morgan and the minutes of the directors' meeting, entered *Page 869 upon the minute book several days after the meeting, tend to show that there was a verbal agreement at said meeting to the effect that the Burk-Waggoner Company's property would be assigned to R. M. Waggoner and Clots L. Green, in consideration of the assumption by them of the debts of the company. Later, however, according to Morgan's testimony, Waggoner "came to me and said, `Make those Burk-Waggoner Company Oil papers out to Clois L. Green.'" Morgan then made the written transfer of all the property to Green, in which it is recited that Green is to assume and pay the debts. If, as is contended by the appellee, Waggoner is responsible for the debt sued on, the burden rested upon it to show why the assignment, conveying the property to Green, did not recite that Waggoner, as well as Green, should be responsible. I think the case of Manley v. Noblitt (Tex.Civ.App.) 180 S.W. 1154, is conclusive of the issues presented by this appeal. Waggoner was not an undisclosed principal. The appellee company does not seek a recovery against Waggoner and Green as partners, nor is it charged that Green took the property for himself and as trustee or agent for Waggoner. There is no allegation of fraud, accident, or mistake in the execution of the assignment. The evidence shows that Waggoner has never received any of the property except certain personal property, which he purchased from Green and paid for. In the case of Johnson v. Portwood, 89 Tex. 235, 34 S.W. 596, Long was not claiming as a stranger. He intervened, claiming a lien in virtue of having furnished the purchase money to the vendee, and was insisting that the parol evidence rule did not prevent him from offering evidence to show that the vendee had 90 days in which to pay a stated sum, instead of 30 days, as recited in the written instrument. The opinion states that, since he is claiming under the instrument, he is privy to it, and is bound by it. The case of Hughes v. Sandal, 25 Tex. 162, is modified by the Supreme Court in Davis v. George, 104 Tex. 106, 134 S.W. 326, and its effect is explained in the following language:
"The parol evidence admitted in that case was correctly held to be admissible under the rule as to latent ambiguities, and if the further reference to the inapplicability of the parol evidence rule to contest between strangers to the deed was intended to apply to a description in a deed in which there was no doubt or uncertainty, it was clearly a dictum, and if it meant that strangers can, by parol evidence, prevent such a deed from conveying land which it clearly undertakes to convey, and make it convey land which it clearly does not undertake to convey, it was as clearly erroneous."
In the instant case we have an unambiguous assignment, duly executed by the Burk-Waggoner Company, conveying the property described therein to Clois L. Green, for the clearly expressed consideration of the assumption by Green (and no one else) of the indebtedness of the grantor. When the Magnolia Petroleum Company filed this suit, not against the Burk-Waggoner Company, but against Green and Waggoner, it based its recovery upon the assignment. Its action cannot be based upon the agreement made at the directors' meeting, because the negotiations there were merged in the subsequent writing. The appellee could not recover upon the verbal agreement because of the statute of frauds. Since it must recover upon the written agreement it cannot recover against Waggoner without varying and contradicting the writing, and in violation of the parol evidence rule adding Waggoner to the writing as an obligor. Manley v. Noblitt, supra; Sanger v. Warren, 91 Tex. 472, 44 S.W. 477, 66 Am. St. Rep. 913.
It cannot be denied that the rule announced by Judge Boyce in his dissenting opinion obtains where a stranger to a written instrument attacks it, and the authorities are uniform that he is not bound by its recitals; but in this case Waggoner does not seek to set aside the recitals in the instrument. He insists that the Magnolia Petroleum Company, in its effort to recover a judgment against him, basing its action upon the written instrument, is privy to the assignment and is bound by the recitals in it. The authorities are not uniform, but we think the Manley and Sanger Cases settle the rule in this state in favor of appellant's contention. The cases in other jurisdictions are not numerous, but the rule contended for, and which I think should control in the disposition of this appeal, is stated in 22 C.J. 1295, § 1729, thus:
"Even though some of the exceptions to the parol evidence rule might warrant the introduction of parol evidence, to show the true contract evidenced by the writing, or some collateral agreement and the like, the rights of a third person may intervene so as to preclude the admission of any evidence whatever to show the transaction or the effect of the instrument to be other than it appears to be on its face" — citing amongst numerous authorities, Farley v. Deslonde, 69 Tex. 458, 6 S.W. 786.
To permit the appellee, by parol evidence, to show that Waggoner is responsible with Green is to permit it at the same time to affirm and deny the very instrument upon which its action is based. 4 Page on Contracts, p. 3811, states the rule which denies one who is a party or privy to a writing the right to vary a written contract in a suit against a stranger, in the following language:
"On the other hand, it has been held that the parol evidence rule operates in favor of a third person in the same way and to the same extent that it operates between the parties to the instrument. Where this view is taken, an injured party, who has given a release to one *Page 870 of two joint wrongdoers, cannot contradict the legal effect of such release in an action between himself and another of such joint wrongdoers. A grantor has not been permitted to contradict the provisions of a deed or the legal effect thereof in litigation between himself and a third person, involving his ownership of such realty. If A. has conveyed realty to B. under a deed, which contains no reservation of certain buildings and such buildings are destroyed by X.'s negligence, it is held that A. cannot show, in an action against X., that such buildings were reserved orally."
It is said in 10 R.C.L. "Evidence," § 213, p. 1021: "The rule that a written agreement cannot be varied by parol operates in favor of those not parties to the instrument as fully as in favor of the parties, where it appears that the instrument was executed by the parties as a final embodiment of their agreement, and where parol evidence is offered to vary the legal effect of the terms in which the instrument is expressed. Where one, although not a party to the instrument, bases his claim upon it, and seeks to render it effective in his favor, as against the other party to the action, by enforcing a right originating in the relation established by it, or which is founded upon it, the parol evidence rule applies." According to this declaration the Magnolia Company, by seeking to enforce the contract against Green, becomes a party to it. Waggoner's name is not mentioned in it, and, although he may be related to it as Cook was in the contract in the Manley-Noblitt Case, he is, in so far as this record is concerned, a stranger to the writing. Under the generally accepted rule Waggoner would have a right to vary the terms of the instrument in a proper action if the other party sought to hold him bound by its recitals. But this is not that character of case. He is here insisting upon the parol evidence rule being enforced against one seeking to recover upon a written contract, and that the rule be enforced in his favor to the extent that the integrity of the writing be maintained against one basing its right of action upon it. I think his contention, in the light of the record, is sound. I therefore concur.