On Motion for Rehearing.
Appellee has filed a remittitur covering the item of $100 special damages mentioned in disposing of the eighth assignment of error, and his motion for rehearing is therefore directed entirely to the ruling made in sustaining the sixth and seventh assignments of error.
[14] He contends that the transaction between himself and Boston consisted of: (1) The sale of (a) realty, (b) corporeal personal property, (c) an interest in a partnership, •(d) claims, accounts and other ehoses in action ; (2) the agreement of Boston to make a cash payment and to assume the payment of the partnership debts; and (3) the dissolution, liquidation, and settlement of a copartnership. He contends that he corrected his testimony so as to show that such was the transaction, and that a valid parol transfer was made of the chose in action. He contends, further, that only a part of the entire transaction was reduced to writing, and that the written instrument does not purport to carry into effect, or express in writing, the entire transaction. The instrument does not appear in the record. Appellee designated it as a transfer, which mentions that Boston “deeds” to appellee all of his personal property, including the “Airdome,” that he has nothing to do with the Airdome. He testified, further, that the understanding with Boston was that Boston was to “deed” over all the rights and claims and property, and he, Tumlinson, was “to assume all indebtedness on the thing”; that he did not know why the transfer of claims was not included in the instrument; that it was a mistake, a mistake by both of them; that he first found out that morning that the written transfer did not include expressly the word, “claims.” This testimony does not show that any part of the agreement was omitted except that relating to claims. The witness did not testify that the dissolution ‘of the partnership was not provided for in the instrument, nor that the consideration was not fully set out, and it appears that while he uses the word, “deed” in lieu of “convey” or “transfer,” the instrument not only conveys land, but also personal property. It is also apparent that the witness does not undertake to prove an oral contract of which only a portion was intended to be reduced to writing, but expressly says the writing was intended to cover the matter of claims, and that such matter was omitted only because of a mistake on the part of both parties. We cannot say from his testimony that the written instrument on its face purports to express only a part of the transaction, and his testimony shows affirmatively that the' instrument was intended to cover the contract relied upon by him to show his ownership of the claim sued upon. It is frequently the case that only those portions of a contract are reduced to writing which evidence the transfer of land, or which evidence the consideration, and the rule relied upon by appellee is well recognized, but the facts do not bring this ease within the rule.
It is of course true that often the written instrument is of such a nature that it shows conclusively, when considered with the tes-timoiiy relating to the nature of the transaction leading up to its execution and delivery, that the entire agreement or contract was not intended to be embraced therein. But the testimony in this case fails to show such an instrument, but shows a “transfer” which might well have embraced the entire contract, and which appellee admits was intended to include the contract relied upon, and would have included same had it not been omitted by mistake.
The motion is overruled.