36 Tex. 177 | Tex. | 1872
In 1861, Allen Atterbury purchased of appellee certain lots or tracts of land, and in part payment for the same executed his promissory note for six hundred dollars, payable in stock cattle; and by the terms of the note, appellee was to hunt the cattle of the stock of Atterbury within the counties of Fannin and Hunt, and to mark and brand the same, sufficient to pay the note. Appellee in his petition below claims that the note is due, that he has received but a ¿mail number of the
The note sued on is very peculiar in its terms. By it, the maker binds himself to pay, on or before the 1st day of June, 1862, to J. M. Biggerstaff, six hundred dollars in stock cattle. This certainly was not a present sale, in which the property in the cattle passed to the payee of the note ; and notwithstanding BiggerstafE was to hunt, mark, and brand the cattle at his own expense, yet the property in the cattle remained in Atterbury, until they were marked and branded and turned over to the payee of the note; and the maker of the note could, at any time before the final delivery, have refused to perform his promise to sell, or rather to pay the note in cattle, and have prohibited the holder of the note from marking and branding any portion of said cattle.
But Atterbury was not bound to gather and deliver the cattle, as, by the terms of the note, that was to be done by Biggerstaff. If, therefore, there was a sufficient number of the particular stock within the counties specified, to pay the note, and further, if Atterbury interposed no obstacles to the gathering of a sufficient number to pay the note, then he or his estate cannot now be held responsible for the amount due on said note—at least in anything else but cattle at the stipulated price. But if there was not a sufficient number of the stock within the counties specified to pay the note, and if Biggerstaff gathered all of the specified stock running in the counties of Fannin and Hunt, which could have been gathered by the use of ordinary diligence, then he was entitled to a monied judgment for any balance due on the note, after giving credit for the number of cattle he did actually get.
The exceptions taken to appellee’s petition, and the evidence offered in relation to the proper meaning of the term “my “ stock,” as used in the note sued on, can have no influence in the equitable determination of this cause, as there was no conflict in the pleadings or evidence on the trial below in regard to the wording and meaning of the note; and it was proven be
In regard to the number of that particular stock of cattle then in Fannin and Hunt counties, the testimony was some•what conflicting; but we think the plaintiff below proved pretty conclusively that he had used due diligence to collect all the cattle of that particular stock which were running in the two counties; and it was also pretty clearly proven that, at that time, there was not a sufficient number of that stock in Fannin and Hunt counties to pay the note. At least, we think the jury were authorized in coming to that conclusion, and the eoiu’t, by its charge to-the jury, presented the question of due diligence very fairly, and at least as favorably for the defendant as could have been demanded legally. And upon a careful consideration of the pleadings, together with the testimony adduced on the trial of this cause, and the law applicable to the facts proven, we are of the opinion that substantial justice has been done, and the judgment is affirmed.
Affirmed.
