Dowling v. Duke

20 Tex. 181

• Court: Texas Supreme Court
• Decided: July 1, 1857
• Status: Published

Opinion

Wheeler, J.

If the averments of the answer be true, the plaintiff has wholly failed to perform on his part the contract, of which he is seeking to compel performance by the defendants. It is quite too clear for argument, that he cannot enforce the contract by compelling the defendants to pay the purchase money, until he has performed or shown a willingness and ability to perform on his part. The answer, if true, presented a good defence to the action; and it was error to sustain the demurrer.

It is said the exceptions to the original answer were waived ; exceptions appearing to have been sustained to the amended answer. We do not so regard it. There were no exceptions to the “amended answer.” The ruling of the Court can have had reference to nothing but the demurrer to the answer. It was sustained to the answer as amended. The judgment is reversed as to the defendant who has prosecuted the Writ of error, and the cause remanded.

Reversed and remanded."