26 Tex. 568 | Tex. | 1863
It appears, by the record of the judgment, that certain issues of fact, which are recited therein, were submitted to the jury, and the other issues of fact necessary to a decision of the case were “submitted to the finding and adjudication of. the court.” The effect of such a submission was to refer the decision of the case to the court upon the special verdict and the evidence. The verdict was conclusive upon the court of the facts.
The correctness of the judgment upon the.merits will depend upon the sufficiency of the facts found by the jury, and established by the proofs, to warrant its rendition.
The right of the plaintiffs to have a specific performance of the contract, on which they sue, decreed them, is resisted upon two ■grounds—first, failure to perform; and, second, laches on the part of the plaintiffs. The former is the ground mainly relied on.
There is no question respecting the law applicable to the case. It is not questioned, on the one hand, that it is the general rule, that, to entitle a party to a specific performance, he must show that he has been in no default in not having performed the agreement, and that he has taken all proper steps towards the performance, on his part; yet, on the other hand, though there has not been a strict legal compliance with the terms of the contract, yet, if the noncompliance does not go to the essence of the contract, relief will be granted. Where the agreement has not (been strictly complied with, still, if there has not been gross negligence in the party, and it is equitable that the agreement should be performed, and compensation may be made for an injury occasioned by the noncompliance with the terms of the agreement strictly, specific performance will be decreed. That negligence'may be imputed will not deprive a party of the aid of a court of equity to enforce specific performance where time is not of the essence of the contract, and it is equitable that the contract should be enforced. There are many cases in which the court will grant relief to a party who has acted fairly though negligently.
What are the facts as respects performance of the contract on the part of the plaintiffs? It is in proof, that, in 1838, pursuant
But the defendant avers, that in consequence of the delays of the plaintiffs’ testator, he was compelled to employ agents and attorneys, and to incur the expense of paying the government dues and obtaining the patent, without any aid or assistance, or the offer of aid or assistance on the part of the plaintiffs’ testator, or any one acting in his behalf. This is a grave charge; but it is unsupported by the evidence. ' It is true that the defendant employed an agent to look after his interests, and, it seems, to effect a division of the land between himself and Hubert, who had acquired an interest under the plaintiffs’ testator. The only obstacle in the way of an amicable partition, according to the Contract at that time, was the want of the patent. Hubert sent and obtained the field notes; and the agent undertook to forward then!
It is averred that the defendant employed attorneys, also, and it appears that he did so shortly before he obtained the patent; and that those attorneys procured the issuance of the patent at his expense. They paid the government dues, and paid the person
The suggestion that the defendant was not informed respecting the locality of the land, or what had been done with his certificate, or towards obtaining the patent, does not appear to be well founded in fact. This bond for title recites the locality of the land, showing that this was known to him in 1844, and his answer in the Elkins suit showed that he was apprised of the causes which had delayed the obtaining of the patent. Upon the whole it is fair to conclude, that up to the time' the defendant was intrusted with the field notes, upon his undertaking to send for and obtain the patent, he intended in good faith to perform his, contract. He had even gone so far as to join with the other party in selecting persons to' divide the land between them according to the contract, which was-only prevented by the absence of the patent. The objections subsequently urged that the plaintiffs’ testator had failed to perform his part of the contract, appears to have been: an after-thought, and the payment of expenses, in part, at least, to hav'O been done
It is unnecessary to notice the assignments of error which have not been relied on in argument further than to say they do not appear to be well taken. Ror is it necessary to notice objections urged in argument to the plaintiffs’ right to the relief they seek, which were not taken by the defendant in his answer, or otherwise at the trial. The alleged sales of portions of the land by those claiming under the plaintiffs’ testator could not affect the rights of the defendant, in a partition. Such sales by his co-tenant were void as to him. If the decree has not fully secured to him his rights as respects the Vendees in those sales, it does not appear, nor does the assignment of errors bring in question the correctness of the decree in this respect. The defendant complains of the refusal of his instructions. But it is evident from the bill of exceptions that the court understood them to be waived by the counsel, and we think the court Was warranted in such understanding. If, when enquired of, the counsel desired the instructions given, he should have said so distinctly. Upon the first branch of the instruction^ respecting the import of the contract, the court had fully instructed the jury, by Stating to them what obligation the contract imposed on the plaintiffs, and what was necessary to entitle them to a specific performance. In respect to the Second branch of the instruction, which related to the payment of the consideration money expressed in the bond, it is to he observed that there was no evidence which conduced to show that it had not been paid. The statements of the defendant in his answer to interrogatories, had reference to the parol contract of 1837, and not to the written obligation of 1844. He was interrogated respecting the former specially, and his answers had reference to that. But it will suffice to say we do Uot think the defendant in a situation to complain that the charge Was not given, because he did not ask that it should be given at the proper timé, in answer to the inquiry of the court.
There is nothing in the objection taken to the validity of the contract, that it Was not signed by the plaintiffs’ testator. It is not usual, nor has it ever been thought necessary to the validity of a bond for title, that it should be executed by the obligee.
We are of opinion that there is no error in the judgment, and it is affirmed.
Judgment affirmed.