Weatherley v. Choate

21 Tex. 272

• Court: Texas Supreme Court
• Decided: July 1, 1858
• Status: Published

Opinion

Roberts, J.

There is but one question in the case. The Court charged the jury if the note was put up as a forfeit to secure the performance of a verbal sale of land, it was wanting in consideration, and could not constitute a cause of action.

This was not erroneous. The parties made a verbal contract concerning the sale of a tract of land, to be completed by passing the title and paying the money on a particular day. This note was to be forfeited and given over to Weatherlev. if Choate failed to pay the money on that day. And a corresponding note was to be forfeited and given over to Choate, if Wheatherley failed to make title to the land on that day. The consideration of the note of Choate, then, was a release from his obligation to pay the purchase money and receive a title to the land. Under the verbal contract Choate was un-der no legal obligation to pay the purchase money, and complete the contract, it not being in writing. (Hart. Dig. Art, 1451.) The contract upon which the note is based, as a collateral incident, not being such as can be enforced, the note falls with it. (6 Humph. R. 261.) This note is in the nature of a gift in futuro, or a promise of a gift upon a contingency; which cannot be enforced in law. (Chevallier v. Wilson and Wife, 1 Tex. R. 161.)

Judgment aErmed.