Kelly v. Webb

27 Tex. 368

• Court: Texas Supreme Court
• Decided: July 1, 1864
• Status: Published

Opinion

Moore, J.

The contract between the parties to this suit, as shown by the record, presents clearly a case of mutual and dependent promises. Neither party was entitled to enforce from the other a fulfilment of the contract without at the same time performing its stipulations on his part. Kelly most certainly could not require Webb to deliver him the corn without tendering him the amount he had contracted to pay for it.

Nor, in cases such as this, can a plaintiff maintain his suit without proof of demand, or of such facts as in contemplation of law are tantamount thereto, but this Kelly failed to do, and was consequently not entitled to a verdict.

There is no error in the judgment, and it is therefore affirmed.

Judgment affirmed.