Delay in furnishing cars for the transportation of cattle from Childress, Texas, to Kansas City, Missouri, was the ground for recovery in this cause, appellee having declared on an oral contract obligating appellant to furnish the cars within a specified time. Appellant pleaded a written contract executed subsequent to the oral one, which contained a clause releasing it from any claim for damages arising from a breach of the oral contract. Appellee made no reply to this defense.
Appellant not only objected to proof of the oral contract, but read in evidence the written contract and requested the court to instruct the jury to "consider such written contract and the conditions therein contained, limiting plaintiffs to recover damages occasioned prior to the signing of such contract." The court refused to give this instruction, and to this, as well as to the court's refusal to exclude evidence of the oral contract, error is assigned.
It seems to have been the view both of counsel for the appellee and of the court, that this written contract had no effect upon the claim for damages arising from a breach of the oral contract previously made and broken, and therefore the written contract was entirely ignored. It is altogether probable that this would have been a correct view if appellee, both in his pleadings and evidence, had made an attack upon the validity of the written contract by alleging and proving the want of consideration for its execution, or circumstances of duress attending the same. See Texas Pacific Railway Co. v. Avery, 19 Texas Civ. App. 235[19 Tex. Civ. App. 235], 46 S.W. Rep., 897, and cases there cited.
In the absence, however, of a pleading putting in issue its validity, the written contract imported a consideration, besides reciting as a *Page 406 consideration for its execution a reduction in the freight rate which the evidence fails to disprove.
Because the court erred in ignoring the written contract when its validity had not been assailed in the pleadings of the appellee, the judgment must be reversed and the cause remanded for a new trial.
Reversed and remanded.