20 Tex. 754 | Tex. | 1858
If the plaintiff chose to consider the contract rescinded by reason of the default of the defendant in making prompt payment, he should not have brought suit upon the note. That was to affirm the contract as being in full force, and to ask a specific performance of it. The amended petition, seeking to recover back the land, appears to have been an afterthought, upon discovering the peculiar phraseology of the bond for title ; which it seems, from the plaintiff’s last amended petition, was not known to him until it was set out in the defendant’s answer. Had the plaintiff elected to proceed, in the first place, for the land, on the ground of the default in making payment, or had the defendant persisted in resisting the payment of the residue of the purchase money at all events, the claim of the former to recover back the land would be entitled to a more favorable consideration. But the plaintiff did not discontinue his suit for the purchase money, although he sought to recover back the land; when called on by the last amended answer, to make his election, after the defendant had withdrawn his defences in bar of the action, he virtually refused to do so. If he chose to disaffirm the contract, he should have proceeded distinctly upon that ground. If the receipt of purchase money, after default, will waive the default, the bringing of a suit for it, which has the same effect as a bill in equity for specific performance of the contract, should have, it would seem, the same effect; unless the defendant should then resist its payment without any good reason, or equitable excuse. The plaintiff might have brought suit for the recovery of the land, and have framed his petition with an alternative prayer for the recovery of the money in case the recovery of the land should be denied him. But having proceeded in the first place for the specific performance of the contract, and thus determined his election, he could not afterwards,
The case having been submitted to the decision of the Court, waiving a jury, it does not become necessary to notice the ruling of the Court excluding the depositions offered in evidence by the plaintiff, further than to say that, if admitted, they would not have materially affected the merits of the case, or have warranted a different judgment.
The manifest justice of the case has been attained; and there is nothing in the rulings of the Court or the judgment of which the plaintiff in error has cause to complain. The judgment is affirmed.
Judgment affirmed.