20 Tex. 132 | Tex. | 1857
Defendant in error brought suit against the plaintiffs in error, on the following instrument in writing:—
$450. Independence, March 28, 1855.
Six months after date we promise to pay John P. Collins four hundred and fifty dollars, with ten per cent, per annum interest, for value received. A part of this note to be paid in lumber if delivered according to contract. (Signed by defendants.) -
Defendants set out the following instrument in their answer, to wit:—
Independence, Washington Co., March 28,1855.
R. S. Blount has this day executed to me his promissory note, with John H. Graves security, for the sum of four hundred and fifty dollars, payable six months after date, with ten per cent, interest; and I hereby promise and agree to take three hundred dollars of said note in lumber at twenty-five dollars per thousand feet. The said Blount agrees to saw said lumber at any time I may want it within six months at his mill near this place, and to give my bill of lumber the preference over other bills that may be to saw. The lumber not to be required until within a reasonable time after his mill is put to work. (Signed by Collins.)
Defendants alleged that the lumber had never been demanded, nor had a bill of it ever been furnished.
Plaintiff replied that at no time from the making to the maturity of the contract did the defendants have a mill in operation to saw the lumber, and therefore were not in situation to pay in lumber. The proof on the trial' showed this replication to be true; and the main question arises upon the charge of the Court, which is excepted to and assigned as error. The charge given at the request of the plaintiff, is as follows:—
1st. That if they believe from the evidence, that the mill mentioned in the defendants’ plea was never in a condition to saw the lumber, then the note became payable in money, and the plaintiff is entitled to recover.
3d. That it was not necessary for the plaintiff to present a bill of lumber to the defendants to saw, if the defendants’ mill was never in operation.
We think these charges were correct. By the terms of the contract, it was expected that the obligors would have a mill in operation by which they should be able to pay a part of their debt in lumber. As however they did not get their mill in operation, it would have been a useless thing in the payee to have furnished a bill for lumber, or made a demand of it. The Court in each one of the charges, presented fairly to the jury the issue whether or not the obligors had a mill in operation so as to make the lumber with which to discharge the debt. The evidence fully justified them in finding in the negative; and so they must have found to have rendered a verdict for plaintiff below.
The Court was asked to charge the jury that there being no averment that the note sued on was delivered, the action could not be maintained. This the Court properly refused because the petition alleges that the note was made and executed; which imports a delivery of it.
We are of opinion that there is no error shown in the record, and therefore the judgment is affirmed.
Judgment affirmed.