Young & Kuhen v. Dalton

18 S.W. 819, 83 Tex. 497, 1892 Tex. LEXIS 770

• Court: Texas Supreme Court
• Decided: February 19, 1892
• Docket: No. 3242.
• Status: Published

Opinion

HENRY, Associate Justice.

This suit was brought by the appellee to recover damages for breach of contract. Her petition alleged, that about the 5th day of August, 1891, she sold and delivered to appellants ninety-two head of cattle, for which they promised to pay her $15.25 per head by executing to her their promissory note of said date, to become due in nine months from date, with interest at the rate of 10 per cent per annum. The petition charges that defendants refused to execute to her their note for the price of said cattle, or to pay her therefor. Plaintiff’s original petition was filed on the 30th day of August, 1891.

Hpon.the verdict of a jury, judgment was rendered for the plaintiff for the contract price.

The assignments of error present the following questions:

1. That the court erred in overruling defendants’ exceptions to the petition on the ground that it failed to allege the value of the cattle, and that it showed that the suit for the contract price was prematurely brought.

2. That the court erred in charging the jury to find for the plaintiff the contract price of the cattle, there being no evidence that they were worth that price, and it appearing that this was a, suit for the contract price begun before the debt became due.

Delivered February 19, 1892.

The defendants among other things pleaded, that they contracted for the cattle before they saw them, and that the plaintiff made fraudulent representations about them, by which they were deceived. The evidence upon this issue, and with regard to the time, place, and circumstances of the delivery of the cattle, was conflicting. The court gave the defendants the benefit of a proper charge upon the issues of misrepresentation and fraud, but directed the jury, if they did not find for them on that issue, to return a verdict for the plaintiff for the Contract price.

We think the charge was correct. The price of the cattle was agreed upon, and they were to be delivered to the agent of the defendants. The defendants were bound to execute their note, payable in nine months, for the price stipulated. When they refused to execute the note they committed a breach of the contract, and gave to plaintiff the right to sue immediately for the price. The defendants did not have the right to violate the contract with regard to the execution of the note and still have the credit that was agreed to be given them. The plaintiff’s right to sue arose out of the breach of the agreement to execute the note, and the damages in such cases are the price of the property. Hanna v. Mills & Hooker, 21 Wend., 90; Hays v. Weatherman, 14 Ind., 341; Rinehart v. Olivim, 5 Watts & S., 162; Benj. on Sales, secs. 764, 765.

The judgment is affirmed.

Affirmed.