Alexander v. Baylor

20 Tex. 560 | Tex. | 1857

Wheeler, J.

It does not appear that the agreement, between the plaintiff and defendant, for forbearance to enforce payment, was made to depend upon the suit of Gilbeau v. Mays. The answer distinctly denies that it was, and alleges that payment was to he made when Mays would agree to make title. The evidence conduces to support the answer in this particular; and establishes, moreover, that Mays did agree to make, and the plaintiff to accept the title before the bringing of the suit complained of; and that it was the fault of the latter that it was not made. It does not appear, therefore, that the suit was prematurely brought, or the injunction rightly obtained. It does not appear that the plaintiff in the judgment enjoined was seeking to enforce payment without giving the proper credits; but if he was, the complainant was not entitled to enjoin the collection of the entire judgment, because of the payment of a part. (Hart. Dig. Art. 1598.) We conclude the judgment, on the whole was right; and the application for rehearing is therefore refused.

Judgment affirmed.