STOREY, L. J., Special Judge.
On March 26, 1888, appellants, T. M. Blakemore and J. H. Routh, filed their suit in the District Court of Tom Green County, against appellee, W. C. Jones, to recover $1000 and interest on the following contract in writing, dated January 1, 1887, to-wit:
‘1
The State of
Texas,
Tom Oreen County.
— This memorandum witnesseth, that whereas, heretofore, to-wit, in the month of July, 1886, W. C. Jones, of said county and State, entered into a contract of sale of certain lands situated in Tom Green County, with T. M. Blakemore, of Taylor County, Texas, and J. H. Routh, of Runnels County, Texas, whereby said W. C. Jones agreed and obligated himself, in consideration of the sum of $18,500 paid and to be paid by said T. M. Blakemore and J. H. Routh, to convey to said Blakemore
&
Routh certain tracts of land situated in Tom Green County, Texas, more particularly described in the said contract of sale, which is now on record in the county clerk’s office of Tom Green County, said tracts being in the following names, to-wit: James Eldridge survey, 640 acres; Albert Black survey, 640 acres; Elizabeth A. McGill survey and James Webb survey, quantity of land in each of these two surveys not stated in said contract; the James Kiggins survey, 177 acres; and G. A. F. Loeklin 28 acres, and one section 640 in the name of Houston & Texas Central Railroad Company; all of said land situated on South Concho, in said county and State. That at the time said contract of sale was entered into, said Blakemore
&
Routh paid to said W. C. Jones the sum of $1000 cash. And whereas, said W. C. Jones is unable to comply with said contract of sale, and make to said Blakemore & Routh a good and sufficient deed and title to said lands specified in said contract of sale; and whereas, said W. C. Jones andT. M. Blakemore and J.H. Routh have agreed to cancel said contract and sale, and to hold the same henceforth for naught, the said W. C. Jones hereby acknowledging the receipt of said! $1000 from said Blakemore & Routh, and hereby agrees and obligates himself to pay back and return to said T. M. Blakemore and J. H. Routh the said $1000, together with interest on the same at the rate of 10 per
cent per annum from the date of said contract of sale, in the manner following, to-wit: That is to say, said T. M. Blakemore and J. H. Routh agree to take in part payment on said $1000 and interest whatever sum may be found on settlement between W. C. Jones and one C. H. Faires to be due said Jones by said Faires on rent of land for the year 1886, the sum so found due to draw no interest from this date. That the amount so found due on said settlement between said Jones and Faires to be endorsed on this agreement, and said Blakemore and Routh then .to look to said C. H. Faires for the payment of said sum so found due. That said C. H. Faires has rented from said W. C. Jones certain lands for the year 1887, which is evidenced by a lease contract between said parties, the number of acres so leased to be determined by survey of said lands. The said Blakemore
&
Routh agree to take in part payment on said $1000 and interest the amount which will be found to be owing by said Faires to said Jones on the rent for 1887, in accordance with said contract, and said Jones agrees to assign and transfer at once to said Blakemore
&
Routh the said lease contract between himself and said Faires; and when said land is surveyed and the amount owing by said Faires to said Jones ascertained, the same shall be endorsed on this agreement, and said Blakemore and Routh shall thereafter look to said Faires for the amount so found due. Should the sums so found due from said Faires to said W. C. Jones exceed the sum of said $1000 and interest, then the excess shall be paid over to said W. C. Jones. Should the sums so found due from said Faires to said Jones not be sufficient to pay said sum of $1000 and interest, the said W. C. Jones obligates and binds himself to pay to T. M. Blakemore and J. H. Routh the amount which may be so found still due to make said sum of $1000 and interest. That when said settlement is made as aforesaid, or said Jones shall demand, said T. M. Blakemore and J. H. Routh agree to execute to said W. C. Jones a release of all right, title, and claim which they may have by reason of the contract of sale aforesaid in the lands aforesaid.
“ Interlineations in lines 3, 7, and 30, on page 3, made before signing.
“ Witness our hands, this 1st day of January, A. D., 1887.
“ W. C. Jones,
“ T. M. Blakemore,
“ J. H. Routh.
■“ Witness:
“ J. W. Hill,
“ C. E. Dubois.”
Appellee filed his second amended original answer, and set up several defenses, all of which were by the rulings of the court on appellants’ special exceptions eliminated from the case, except that the contract sued on by its terms transferred and assigned to appellants, in satisfaction of
their demand, certain indebtedness due by one C. H. Faires to appellee on rents for the years 1886 and 1887; and specially that appellee, by the terms of said contract, had transferred and assigned to appellants a certain lease contract, dated December 20, 1886, between himself and Faires, and claimed a credit of $553 on appellants’ demand, by reason of such assignment, and also made said Faires a party defendant.
Appellants, on April 30, 1889, filed their second supplemental petition in replication to appellee’s second amended original answer; and among others, specially excepted to so much of said answer as claimed a credit of $553 by reason of the transfer of the said lease contract between appellee and said Faires, because there were no allegations therein that appellee and Faires had settled the amount of rents due under said lease contract, or that appellee had ever endorsed, or offered to endorse, upon the contract sued on any amounts found due; which exception was overruled.
Appellants then specially plead, that at the time the contract sued upon was entered into, the amount of rents due by Faires to appellee for the years 1886 and 1887 was unknown and undetermined, and that by the terms of said contract it was the duty of appellee to ascertain the amount of rents so due, and have it endorsed upon the contract sued on; that appellee and Faires had never made any settlement of the rents, and that appellee had never made, nor directed to be made, any endorsement on appellants’ demand of the credits claimed by him.
Faires filed his plea to the jurisdiction of the court over his person, which was sustained, and he was dismissed from the case.
Jury waived, and cause submitted to the court, who held that the legal effect of the contract between appellants and appellee sued on was to transfer to appellants the lease contract between appellee and said Faires, and allowed appellee a credit of $549.50 thereunder, and rendered judgment for appellants for $1000 and interest, less said credit. Appellants filed their motion for a new trial, which was overruled; to which appellants excepted, and gave notice of appeal to the Supreme Court, and now prosecute their appeal.
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STOREY, L. J., Special Judge.
On March 26, 1888, appellants, T. M. Blakemore and J. H. Routh, filed their suit in the District Court of Tom Green County, against appellee, W. C. Jones, to recover $1000 and interest on the following contract in writing, dated January 1, 1887, to-wit:
‘1
The State of
Texas,
Tom Oreen County.
— This memorandum witnesseth, that whereas, heretofore, to-wit, in the month of July, 1886, W. C. Jones, of said county and State, entered into a contract of sale of certain lands situated in Tom Green County, with T. M. Blakemore, of Taylor County, Texas, and J. H. Routh, of Runnels County, Texas, whereby said W. C. Jones agreed and obligated himself, in consideration of the sum of $18,500 paid and to be paid by said T. M. Blakemore and J. H. Routh, to convey to said Blakemore
&
Routh certain tracts of land situated in Tom Green County, Texas, more particularly described in the said contract of sale, which is now on record in the county clerk’s office of Tom Green County, said tracts being in the following names, to-wit: James Eldridge survey, 640 acres; Albert Black survey, 640 acres; Elizabeth A. McGill survey and James Webb survey, quantity of land in each of these two surveys not stated in said contract; the James Kiggins survey, 177 acres; and G. A. F. Loeklin 28 acres, and one section 640 in the name of Houston & Texas Central Railroad Company; all of said land situated on South Concho, in said county and State. That at the time said contract of sale was entered into, said Blakemore
&
Routh paid to said W. C. Jones the sum of $1000 cash. And whereas, said W. C. Jones is unable to comply with said contract of sale, and make to said Blakemore & Routh a good and sufficient deed and title to said lands specified in said contract of sale; and whereas, said W. C. Jones andT. M. Blakemore and J.H. Routh have agreed to cancel said contract and sale, and to hold the same henceforth for naught, the said W. C. Jones hereby acknowledging the receipt of said! $1000 from said Blakemore & Routh, and hereby agrees and obligates himself to pay back and return to said T. M. Blakemore and J. H. Routh the said $1000, together with interest on the same at the rate of 10 per
cent per annum from the date of said contract of sale, in the manner following, to-wit: That is to say, said T. M. Blakemore and J. H. Routh agree to take in part payment on said $1000 and interest whatever sum may be found on settlement between W. C. Jones and one C. H. Faires to be due said Jones by said Faires on rent of land for the year 1886, the sum so found due to draw no interest from this date. That the amount so found due on said settlement between said Jones and Faires to be endorsed on this agreement, and said Blakemore and Routh then .to look to said C. H. Faires for the payment of said sum so found due. That said C. H. Faires has rented from said W. C. Jones certain lands for the year 1887, which is evidenced by a lease contract between said parties, the number of acres so leased to be determined by survey of said lands. The said Blakemore
&
Routh agree to take in part payment on said $1000 and interest the amount which will be found to be owing by said Faires to said Jones on the rent for 1887, in accordance with said contract, and said Jones agrees to assign and transfer at once to said Blakemore
&
Routh the said lease contract between himself and said Faires; and when said land is surveyed and the amount owing by said Faires to said Jones ascertained, the same shall be endorsed on this agreement, and said Blakemore and Routh shall thereafter look to said Faires for the amount so found due. Should the sums so found due from said Faires to said W. C. Jones exceed the sum of said $1000 and interest, then the excess shall be paid over to said W. C. Jones. Should the sums so found due from said Faires to said Jones not be sufficient to pay said sum of $1000 and interest, the said W. C. Jones obligates and binds himself to pay to T. M. Blakemore and J. H. Routh the amount which may be so found still due to make said sum of $1000 and interest. That when said settlement is made as aforesaid, or said Jones shall demand, said T. M. Blakemore and J. H. Routh agree to execute to said W. C. Jones a release of all right, title, and claim which they may have by reason of the contract of sale aforesaid in the lands aforesaid.
“ Interlineations in lines 3, 7, and 30, on page 3, made before signing.
“ Witness our hands, this 1st day of January, A. D., 1887.
“ W. C. Jones,
“ T. M. Blakemore,
“ J. H. Routh.
■“ Witness:
“ J. W. Hill,
“ C. E. Dubois.”
Appellee filed his second amended original answer, and set up several defenses, all of which were by the rulings of the court on appellants’ special exceptions eliminated from the case, except that the contract sued on by its terms transferred and assigned to appellants, in satisfaction of
their demand, certain indebtedness due by one C. H. Faires to appellee on rents for the years 1886 and 1887; and specially that appellee, by the terms of said contract, had transferred and assigned to appellants a certain lease contract, dated December 20, 1886, between himself and Faires, and claimed a credit of $553 on appellants’ demand, by reason of such assignment, and also made said Faires a party defendant.
Appellants, on April 30, 1889, filed their second supplemental petition in replication to appellee’s second amended original answer; and among others, specially excepted to so much of said answer as claimed a credit of $553 by reason of the transfer of the said lease contract between appellee and said Faires, because there were no allegations therein that appellee and Faires had settled the amount of rents due under said lease contract, or that appellee had ever endorsed, or offered to endorse, upon the contract sued on any amounts found due; which exception was overruled.
Appellants then specially plead, that at the time the contract sued upon was entered into, the amount of rents due by Faires to appellee for the years 1886 and 1887 was unknown and undetermined, and that by the terms of said contract it was the duty of appellee to ascertain the amount of rents so due, and have it endorsed upon the contract sued on; that appellee and Faires had never made any settlement of the rents, and that appellee had never made, nor directed to be made, any endorsement on appellants’ demand of the credits claimed by him.
Faires filed his plea to the jurisdiction of the court over his person, which was sustained, and he was dismissed from the case.
Jury waived, and cause submitted to the court, who held that the legal effect of the contract between appellants and appellee sued on was to transfer to appellants the lease contract between appellee and said Faires, and allowed appellee a credit of $549.50 thereunder, and rendered judgment for appellants for $1000 and interest, less said credit. Appellants filed their motion for a new trial, which was overruled; to which appellants excepted, and gave notice of appeal to the Supreme Court, and now prosecute their appeal.
Appellants assign a number of errors, all of which go to the construction of the contract sued on and the nature of the judgment rendered.
The errors copied into the brief, and to which our attention is called, are the second, eighth, ninth, and tenth assignments.
The second error assigned is the action of the court overruling appellants’ exceptions claiming credit of $553 due by Faires to Jones under a lease for the year 1887.
The eighth assignment complains of the conclusions of law, and the legal effect given to the contract that appellee was to transfer the lease contract between him and Faires to appellants, and have credit therefor.
The ninth error assigned is, that the court erred in allowing appellee credit for $549.50, to be endorsed as a credit August 1, 1887.
The tenth error assigned is the rendition of judgment for only $646.77 against appellee.
It seems to, be considered on all sides, that as to the rent for the year A. D. 1886 the contract prescribes conditions precedent to be performed before any credit therefor could be claimed by appellee. The language in that part of the contract is as follows, viz.: 61 Said T. M. Blakemore and J. H. Bouth agree to take in part payment on said $1000 and interest whatever sum may be found on settlement between W. C. Jones and one C. H. Faires to be due said Jones by said Faires on rent of land for the year 1886. * * That the amount so found due on said settlement between said Jones and Faires to be endorsed on this agreement, and said Blakemore and Bouth then look to C. H. Faires for the payment of said sum so found due.”
Then follows the clause relative to the rent for the year 1887, viz.: “That said C. H. Faires has rented from said W. C. Jones certain lands for the year 1887, which is evidenced by a lease contract between said parties, the number of acres so leased to be determined by survey of said lands. The said Blakemore & Bouth agree to take in part payment on said $1000 and interest the amount which will be found to be owing by said Faires to said Jones on the rent for 1887, in accordance with said contract, and said Jones agrees to assign and transfer at once to said Blake-more & Bouth the said lease contract between himself and said Faires; and when said land is surveyed and the amount owing by said Faires to said Jones ascertained, the same shall be endorsed on this agreement, and said Blakemore & Bouth shall
thereafter
look to said Faires for the amount so found due. Should the sum so found due from said Faires to said W. C. Jones exceed the sum of said $1000 and interest, then the excess shall be paid over to said W. C. Jones. Should the sum so found due * * * not be sufficient to pay said sum of $1000 and interest, the said W. C. Jones obligates and binds himself to pay to T. M. Blakemore and J. H. Bouth the amount which may be so found still due to make said sum of $1000 and interest.”
It seems from the foregoing quotations, that there is a condition precedent to be performed in the rent contract for the year 1887¡ as well as for the year 1886, which was in each case that Jones should have a settlement of his account for rent for each year, and that then the amount so found to be due was to be placed as a credit on the contract here sued on, and that “ Blakemore and Bouth
shall thereafter look to said Faires for the sum so found due.”
This being our construction of the contract, it follows that the failure of the defendant, Jones, to allege a settlement with Faires, and to present to plaintiffs evidence of said settlement, so as to show a liquidated de
mand on Faires, his allegations would not be sufficient, and the fourth exception to his answer was well taken, and should have been sustained by the court.
It was error to allow the credit of $549.50.
The judgment should have been for the $1000 and interest thereon at 10 per cent from the 30th day of July, A. D. 1886; and the judgment of the court below is reversed'and, so reformed, is here rendered for appellant for said amount.
Reversed and rendered.
Delivered June 14, 1893.
Chief Justice Fisher did not sit in this case.