251 S.W. 251 | Tex. App. | 1923
We think the judgment is erroneous, and that it should have been in appellant's favor for the amount of the note sued upon. It was not disputed in the testimony that appellant complied in all respects with his undertaking in the agreement set up by appellees, except that he did not execute and deliver to Edwards an instrument in writing evidencing same. Appellees may have had a right at one time to complain of his default in that respect, but certainly, after appellant had waited the time he agreed to wait for a further payment on the $1,750 notes, they had no right to a recission of the contract and a cancellation of the note sued upon merely because he had breached his undertaking to furnish Edwards written evidence of his agreement to wait that time. A part, at least, of the consideration of the note sued on was appellant's undertaking to credit the $1,750 notes as stated and to extend the time for the payment of the amount of the $1,750 notes remaining after they were so credited; and that part of the consideration, as we have seen, never failed. If the undertaking to furnish Edwards written evidence of the agreement should be treated as also a part of the consideration, the failure of such part would not entitle appellees to a rescission of the contract after the performance thereof by appellant as stated. If appellees, or any of them, were entitled to relief because of appellant's breach of his undertaking in that respect, it was not by a rescission of the contract, but by damages for a breach thereof; and no contention that appellees were entitled to recover anything as damages for such breach was made in either their pleadings or the evidence in the court below.
The judgment will be reversed, and judgment will be here rendered in appellant's favor against appellees for the amount of the note sued upon.
