Brasher v. Davidson

31 Tex. 190

• Court: Texas Supreme Court
• Decided: April 15, 1868
• Status: Published

Opinion

Morrill, C. J.

—On the 21st July, 1863, one Dickson sold and conveyed to Davidson a certain tract of land, in consideration of two thousand pounds of cotton, to be paid to J. P. Dickson on the 1st day of November, 1864.

Failing to deliver the cotton, the legal representative of Dickson, who had died, brought suit to recover the value of the cotton, and the only question presented for our decision is, whether the defendant was liable to pay the value of the cotton at the time appointed for the delivery thereof, or the highest price between that time and the judgment. Defendant does not deny having received the land sold, and, although the land was conveyed by a bond for title instead of a deed, as he made no objection to the conveyance, and relies upon and holds the consideration of the cotton, he has become liable for the payment of the value of the cotton, upon the same principle as if money had been advanced, instead of land, for the payment of the cotton.

It is not an open question in this court that a party who fails to deliver a specific article, for which he has received payment in advance, is liable to pay the highest market value thereof from the breach of contract to the day of trial in court.

This was the principle decided by this court in 1849, and reported in the case of Randon v. Barton, 4 Tex., 289, and reaffirmed in 1855 in the case of Calvit v. McFaddin, 13 Tex., 324.

As the court erred in deciding that the party was liable for the value of the cotton at the time of the maturity of the note the judgment will be reversed, and cause

Remanded.