On Motion for Rehearing.
Appellee urges that in our original opinion we erred in two respects: (1) In holding that the exception to the general rule inhibiting the variance by parol of the terms of a written instrument applied in the instant case, for the reason, as claimed by ap-pellee, that such exception obtains only when the consideration expressed is merely formal, and not when the consideration is contractual; (2) tnat even though it might be properly held that such exception should obtain, yet, inasmuch ' as the evidence put in issue the question of what was the real consideration for the conveyance, the majority, at least, •erred in holding that a peremptory instruction should have been given for defendants, and in rendering judgment for them.
Taking up these two propositions in their order, we will discuss them briefly. It will be remembered that the defendants Miller pleaded that the consideration for the execution of the recited vendor’s lien note was not the conveyance of the land by plaintiff, but was in fact the promised legal services to be rendered by plaintiff. They alleged the refusal and failure of plaintiff to render such legal services. They further alleged that:
“The note was wrongfully and fraudulently inserted in the deed without the knowledge of the defendants for a long time afterwards, and defendants repudiated and refused to pay the note, because it was wrongfully inserted in the deed as a part of the purchase price of the land described in plaintiff’s pleadings.”
It was further alleged that intervener acquired any rights that he might have, or might claim, after notice of defendants’ defenses, which latter plea the evidence supports, and we do not understand that inter-vener seriously contends otherwise. Therefore a defense, good as against plaintiff, would be available as against intervener. Since intervener’s right to recover the land, as the holder and assignee of the superior title, was dependent upon the establishment of the contention that a part, at least, of the purchase price had not been paid, his right of recovery would fail, if it should be shown that the real consideration moving to the defendants for the execution of this note was not the conveyance of the land, and particularly so if it should be established that the real consideration had failed. The evidence is abundant to at least put in issue the question of consideration. And the defendants’ pleadings, recited above, justify the admission and consideration by court and jury of such evidence. Though there maybe said to be some conflict of authority upon the question of whether or not a written contract may ever be varied in terms by parol when the obligation sought to be affected is contractual, in the absence of fraud, accident, or mistake, yet there is no real conflict where fraud, accident, or mistake has been pleaded, and where the admitted parol evidence tends to establish such allegation. 20 Cyc. 112, § 2; 1 Greenleaf, § 284; Bishop on Contracts, § 169. It also has been held by our Supreme Court in Taylor v. Merrill, 64 Tex. 494, that it is not necessary for allegations Of fraud, accident, or mistake to be made to account for the failure to express the full consideration, when the allegation has been made that part of the consideration for the conveyance of land had failed; that, as between the parties, parol evidence is admissible to show that the vendor had falsely represented certain improvements, etc., were on the land, and that such constituted a part of the considera* *109tion. See, also, Paris Gro. Co. v. Burks, 99 S. W. 1137. Hence we adhere to our views expressed in our original opinion upon the first proposition presented.
As to the second proposition urged, to wit, that in any event we should have reversed and remanded the cause instead of rendering judgment for defendant, the writer is still of the opinion heretofore expressed. In addition to the authorities cited in the original opinion in support of his expressed dissent, there might he mentioned Crenshaw v. Claybrook, 11 S. W. 536; Neese v. Riley, 77 Tex. 348, 14 S. W. 65; Behrens v. Dignowitty, 4 Tex.Civ.App. 201, 23 S.W. 288. But the majority still are of the opinion previously expressed, and appellee’s motion is hereby overruled.
BUCK, J., dissents.