94 S.W. 115 | Tex. App. | 1906
On the 7th day of October, 1904, Frank Popp, appellee, contracted in writing with appellant for the sale of 231 acres of land in Cooke County for the sum of $9,240, of which $100 was paid by the appellant at the time; $500 was to be paid within two weeks from the date of the contract, at which time appellee was to execute a good warranty deed to appellant, who was then to procure the balance of the purchase money, $6,000, by a farm loan. The full purchase price, $9,240, was to be paid on or before January 1, 1905, and appellee was to deliver possession on the 1st day of January following. 200 acres of the land mentioned constituted the homestead of appellee and his wife. The wife at the time of the execution of the contract consented thereto, but subsequently both appellee and his wife declined to execute deed as agreed upon. This suit was therefore *347 instituted to recover the sum of $2,310 damages because of the breach of the contract. The verdict and judgment was in accordance with the following peremptory charge of the court, to which error is assigned, viz.: "You are instructed to find for plaintiff $100, the amount tendered by defendant to plaintiff about January 1, 1905. Under the law of this case the plaintiff is not entitled to recover anything more than this."
In so instructing the jury, we think the court committed error. The theory of appellee's defense, among other things, is that the wife having refused to join in the execution of a deed to their homestead, the husband, appellee, is not liable in damages upon the written contract of sale, and the case of Berlin v. Burns,
In further support of the judgment appellee insists that appellant failed to prove an ability to procure the farm loan mentioned in the contract. Also that there is no evidence showing that the value of the land in controversy at the time of the breach of the contract was in excess of the contract price. After careful consideration of the evidence, however, we think it such as to require a submission of these issues to the jury. The court's charge having excluded them it follows, we think, that the judgment must be reversed and the cause remanded.
Reversed and remanded.
Writ of error dismissed.