66 Tex. 82 | Tex. | 1886
Leath & McMullen were the owners of a “bus,” two horses and harness. In February, Leath sold to McMullen his interest in this property on terms not complied with by the purchaser. On April2,1884, McMullen having had possession in the meantime, a new trade was made. The horses became absolutely the property of McMullen, and the “bus” and harness were to become his if a note for $372.75, then taken by Leath, was paid at maturity, December 15, 1884, by McMullen. If this note was not paid, then it was agreed between the parties, verbally and in writing, that Leath should have the “bus” and harness in satisfaction of the note. The parol testimony, substantially uncontradicted, was, in effect, that at the April trade the property was partitioned, the “bus” and harness becoming the exclusive property of Leath, if the note •should not be paid. The written agreement, excluded on the trial, did not contradict, but strongly corroborated, this theory. Against this was nought but the inability of McMullen to remember those features of the trade favorable to Leath. There is nothing to distinguish the case from City Nat. Bank v. Tuft, 63 Tex., 113. McMullen did not pay the note, the payment of which was a condition prece
Counsel for appellees state in their brief that there is no order in the record authorizing the statement of facts to be filed in vacation. In this they are mistaken.
The case was tried by the court without a jury. The judgment below is reversed and the cause will be remanded, with instructions to the court below to render judgment for the plaintiff in accordance with this opinion, and to dispose of the issue between the defendants upon a re-trial of the case as to Lemp’s warranty.
It is so ordered.
Reversed and Remanded.
[Opinion delivered June 4, 1886.]