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18 Tex. 535

Birdwell v. Cox

Texas Supreme Court

Decided July 1, 1857

Texas Supreme Court · decided 1857-07-01

Error from Walker. Tried below before the Hon. Peter W. Gray. Suit by defendant in error against plaintiffs in error on a promissory note. Plea of failure of consideration. There was an affidavit by defendants, for a continuance on the ground that a commission to take the depositions of certain witnesses in Tennessee, had not been returned. But it did not appear that any order was made on it, or that it was called to the attention of the Court.

Key passage — most relied on by later courts

““Agreements of counsel, respecting the disposition of causes, which are merely verbal, are very liable to be misconstrued or forgotten, and to beget misunderstandings and controversies; and hence there is great propriety in the rule which requires that all agreements of counsel respecting their causes shall be in writing, and if not, the court will not enforce them. They will then speak for themselves, and the court can judge of their import, and proceed to act upon them with safety. The rule is a salutary one, and ought to be adhered to whenever counsel disagree as to what has transpired between them.””

quoted by 2 later decisions, including Kennedy v. Hyde, Swartzberg v. City of Temple

Good law ✅— No negative treatment on recordhow we know

Decided 1857-07-01

How this case has been cited

Cited by 24 later decisions — most recently October 2018

1 federal appellate · 18 state decisions

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Wheeler, J.

¶1The alleged agreement not being in writing, and the counsel differing as to the existence of such agreement, the Court very properly refused to grant a new trial on that ground. Agreements of counsel, respecting the disposition of causes, which are merely verbal, are very liable to be misconstrued or forgotten, and to beget misunderstandings and controversies ; and hence there is great propriety in the rule which requires that all agreements of counsel respecting their causes shall be in writing, and if not, the Court will not enforce them. They will then speak for themselves, and the Court can judge of their import, and proceed to act upon them with safety. The rule is a salutary one, and ought to be adhered to whenever counsel disagree as to what has transpired between them.

¶2*538But if the agreement in this case were admitted, no sufficient excuse was shown for not having made it the ground of an application for continuance. The defendants having suffered their cause to proceed to trial when they were not prepared, in consequence of a misunderstanding between themselves and their counsel, can not afford them a ground for a new trial. There is no error in the judgment and it is affirmed.

¶3Judgment affirmed.

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