28 Tex. 599 | Tex. | 1866
—If any title or interest in the Cunningham certificate vested in the appellee by the conveyance of this certificate, made to him by the apppllant, he evidently should not be permitted to recover damages for the breach of contract on which he sues and also to hold on to the conveyance of the certificate and refuse its cancellation. We have, however, had much hesitancy in concluding from the evidence in the record that any interest whatever passed to the appellee by virtue of this alleged transfer. It is not shown that there was really in existence any such certificate, or, if so, that appellant had any title or claim to it, or that he had any authority to dispose of it from the grantee, Cunningham, as whose agent he purports to make the conveyance. It might perhaps be safely concluded, that the failure to cancel this transfer could work no injury to any one, or at least it could not do so to the appellant, as he has not shown that he has in truth any interest in it'. But appellee, by accepting the transfer from appellant, and from the instructions which he gave the clerk when he deposited it with him, seems to have recognized the genuineness of the certificate, and that appellant had such control of or interest in it as to authorize him to convey it in discharge of his individual obligation. Appellee should not be permitted to deny that such transfer discharged the contract upon which he brings his suit, while he neither surrenders nor consents to the cancellation of the transfer; and especially as it was shown that appellant proffered, before the suit was instituted against him, to discharge in
This ground was urged by appellant as a defense to the action. And if it had been shown that appellee had accepted the transfer as sufficient evidence of appellant’s title.to the certificate, and he had also proved, as he alleges in his answer, that he had made publication as required by law of the loss of the certificate, and that the only reason why it had not been issued was the failure of the appellee to make the oath required for this purpose, we see no reason, why he should not have successfully maintained this defense. But it is not shown by the testimony whether it were a duplicate certificate already obtained which appellee expected to receive, or one which was to he subsequently procured. If the latter, appellant failed to prove that he had taken the steps to obtain it, as alleged in his answer.
By the charge of the court, the issue presented by appellant in respect to this defense, and his right to a cancellation or surrender of the transfer, were treated as altogether irrelevant. In this we hold there was error, for which the judgment must he reversed, and the cause
Remanded.
