- 15 - or contemporaneously with the Purchase Agreement, but subsequent to it. Cf. Smith v. Bidwell, 619 S.W.2d 445 (Tex. Civ. App. 1981) (conflicting agreement reached 1 day after entering original written contract is a subsequent agreement for purposes of parol evidence rule). Therefore, the Noncompete Agreement would be admissible in an action between petitioner and Wagner to alter the construction of the Purchase Agreement, and thus the Danielson rule does not operate to preclude our consideration of it in determining what was agreed to by petitioner and Wagner. Respondent also argues, for the first time on reply brief, that the parol evidence rule applies to the discussions between Forest and Wagner prior to signing the Purchase Agreement and to any other evidence extrinsic thereto. We disagree. When the Noncompete Agreement and Purchase Agreement are compared, an ambiguity in the agreement between petitioner and Wagner emerges. Each writing purports to designate petitioner’s $300,000 in accounts receivable from SDI as consideration for a different item–-for Wagner’s stock in the Purchase Agreement and for Wagner’s covenant not to compete in the Noncompete Agreement. The Danielson rule does not preclude consideration of extrinsic evidence where written agreements are ambiguous. See Patterson v. Commissioner, 810 F.2d 562, 572 (6th Cir. 1987), affg. T.C. Memo. 1985-53; Smith v. Commissioner, 82 T.C. 705, 713-714 & n.9 (1984).Page: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Next
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