I cannot agree to an affirmance of the judgment below.
Plaintiff declared upon a written contract calling for the addition of a room to a dwelling located on Lots 10 and 11, N.C.B. 2240, in San Antonio. Plaintiff alleged that he had performed his obligations under the contract, and his prayer for relief was based on defendant's failure to pay the price specified in such written contract. Under the contract defendant agreed to pay plaintiff upon completion of the work. Plaintiff alleged that defendant had paid $700.00, but that she refused to pay the remaining $700.00 as required by the written contract.
The testimony discloses that plaintiff did not work on Lots 10 and 11, N.C.B. 2240, which lots, in fact, were not owned by defendant. The evidence conclusively establishes that plaintiff did construct an addition to defendant's dwelling, which is located on Lots 25 and 26, N.C.B. 2241. The written contract, including the legal description of the property, was prepared by plaintiff.
Throughout the trial, defendant objected to testimony concerning any work done by plaintiff on lots other than those described in the written contract on the ground that *Page 500 such evidence violated the parol evidence rule.
Plaintiff does not contend that the written agreement was no intended as a complete 'integration' of their agreement. The instrument itself is complete on its face, and there is nothing, either in the instrument or in the evidence, to indicate that the writing represents only a part of the agreement between the parties. Under these circumstances, parol evidence cannot be considered for the purpose of varying or contradicting the writing. 'This is a proposition of such universal acceptation that it is unnecessary to cite authorities to sustain it.' Ross Sensibaugh v. McLelland,262 S.W.2d 205, 208 (Tex.Civ.App.-Fort Worth, 1953, writ ref'd n.r.e .).
This is not a case involving a mere variance between pleading and proof. There was no such variance here. Plaintiff alleged a written contract calling for construction of an addition to a building located on Lots 10 and 11, N.C.B. 2240. He introduced in evidence a written contract calling for the construction of an addition to a building located on Lots 10 and 11, N.C.B. 2240. The vice in this case is that after plaintiff had introduced in evidence the written contract which corresponded in every detail to the written contract upon which his claim was based, he was allowed to introduce parol evidence for the purpose of changing the description from 'Lot 10 11, New City Block 2240,' to 'Lot 25 26, New City Block 2241.'
The violation of the parol evidence rule is clearly presented by defendant's brief. Her first point complains that the trial court erred in allowing plaintiff, by parol evidence, to change the clear unamibiguous terms of the written contract. This challenge cannot be met by application of rules relating to variance between pleadings and proof.
Plaintiff's pleading contains no allegations of fraud, accident or mistake. Despite defendant's objections invoking the parol evidence rule, plaintiff made no effort to amend his pleadings so as to support a prayer for reformation because of mistake. Under these circumstances, it cannot be said that the issue of mistake and reformation were tried by implied consent.
Nor is it sufficient to point out that defendant did not assert, under oath, that plaintiff did not perform his obligations under the contract sued on. Defendant's answer alleged that plaintiff had not performed the services or delivered the materials called for by the contract. Although this plea was not verified, as required by Rule 93, T.R.C.P., plaintiff did not except to its sufficiency and did not object to the introduction of evidence to the effect that he had performed no work on Lots 10 and 11, N.C.B. 2240. Under these circumstances, the defect in defendant's pleadings was waived. Rule 90, T.R.C.P.