Walker v. Cole

24 S.W. 76, 5 Tex. Civ. App. 179, 1893 Tex. App. LEXIS 568

• Court: Court of Appeals of Texas
• Decided: November 29, 1893
• Docket: No. 556.
• Status: Published

Opinion

KEY, Associate Justice.

This is the fourth appeal in this case. The former decisions settle the law, in so far as this case is concerned, to the effect, that the answer interposed by Estell gave a sufficient excuse for not paying for the land when his notes for the purchase money fell due to deprive Chism of the right to treat the contract of sale as forfeited and sell the land to another, so as to preclude Estell of his right to pay for and hold it.

Concerning the facts set up as constituting such excuse, there was evi dence pro and con on the last trial, yet the trial court declined to submit the issue to the jury, and instructed them to find for the plaintiff for the land. This was error, for which the judgment must be reversed.

Delivered November 29, 1893.

The court also erred in not sustaining appellant’s contention, that Estell could not be held responsible to appellee for timber cut on the land by the former before the latter’s purchase from Chism. Estell v. Cole, 62 Texas, 703.

Inasmuch ,as the present appellant has succeeded to all the rights of the former defendant, Estell, and as it does not appear that a predicate was laid to impeach Estell as a witness, the court erred, as charged in appellant’s eighth assignment of error, in permitting appellee to testify to a statement made by Estell after he had sold to appellant.

Appellant’s tenth assignment of error must likewise be sustained. The testimony offered would have been a circumstance proper to be considered by the jury in determining whether or not Estell was excusable for not paying his purchase money notes at maturity.

The court should have sustained appellants’ objection to the testimony of appellee, Cole, proving the execution of the instrument purporting to have been executed by John Chism to appellee, and witnessed by J. M. Wilson. Until appellee had accounted for the absence of the subscribing witness, he was not entitled to prove its execution by his own testimony.

Other objections to the court’s rulings upon the admissibility of testimony are without merit; and as the law of the case has been settled by the former decisions, this opinion will not be extended.

The judgment of the court below is reversed and the cause remanded.

Reversed and remanded.