20 Tex. 265 | Tex. | 1857
The Court charged the jury, in effect, that if Mr. McKellar did not deliver the corn when called for by Steagall, they should find for the plaintiff below, Steagall, &c.
The charge assumed a fact which was in controversy, to wit: That the corn was called for at the time contemplated by the parties for its delivery, or that, the time not being definitely fixed by the contract, nearly three months was a reasonable time, within which, to call for the corn.
This charge cannot be sustained; especially as the Court’s attention was called to it by a counter charge, asked by the defendant below; which was that “ if the jury believe from the evidence, that the plaintiff did not demand the corn, at the time specified by the parties, you will find for the defendant.” What rendered such a charge appropriate in the case, was the proof that it was a part of the contract, that the corn should be called for in two or three weeks, and the fact that McKellar should receive the money for the corn about that time entered into the contract, as he was in need of the money. This instruction should have been given; or at least, the Court’s attention being called to the subject, it should have been fairly left to the jury to determine what was the contract of the parties as to the time within which the corn was to be called for by the purchaser. This not being done, the charge of the Court was erroneous, and must have controlled the verdict of the jury. (Parsons on Contracts, 477 and 481, note a; 2 Penn. R. 454.)
The petition may be sufficient upon general demurrer. But as to that it is unnecessary to decide, as the plaintiff may amend his pleadings, and indeed must do so, if he expects to maintain his suit under the evidence presented in the record. Other questions will not be noticed. Judgment reversed and cause remanded.
Reversed and remanded.