Brock v. Ex'r

• Court: Texas Supreme Court
• Writing for the Court: HEMPHILL
• Citation: Brock v. Ex'r, 16 Tex. 461 (Tex. 1856)
• Decision Date: 01 January 1856
• Parties: JOHN G. BROCK v. RICHARD P. JONES' EXECUTOR.

16 Tex. 461

JOHN G. BROCK

v.RICHARD P. JONES' EXECUTOR.

Supreme Court of Texas.

1856.

It is a familiar maxim, that ratification has retroactive efficacy, and relates back to the inception of the transaction; and when deliberately made, with a knowledge of the circumstances, cannot be revoked.

The demand of a receipt for the amount tendered will not vitiate a tender, not even the demand of a receipt in full, where the sum tendered is all that is due, and the claim is not unliquidated and unsettled between the parties. (But the case was not decided on this point.)

The offer to pay, on the part of Brock, is believed, however, to be defective, when considered technically as a tender, in this, that there was no profert in curia. The money was not brought into court, nor was it tendered at the time of the trial. This was necessary, in order to take advantage of the previous offer, as a tender.

The act of Brock was, to say the least, a substantial compliance with his stipulations; and although his plea and offer might not be available in a court of law, when considered merely as a tender, yet his offer to pay, as made, and his averment that he has always been ready and willing to pay, and that he still is ready, according to the settlement, is sufficient, with previous part performance, to save the contract from forfeiture, and entitle him, on compliance with its terms, to specific performance.

Where the defendant, in a suit to recover land and cancel a deed, pleaded that the deed had been delivered in pursuance of a settlement of a former suit about the same land, which had been in part performed, and pleaded a tender of performance of the residue (for the payment of money), and that he had always been ready and willing and was still ready and willing to perform his part, but did not bring the money into court, nor pray a specific performance, but prayed to be hence dismissed, etc., and the plaintiff had judgment; this court, being of opinion that the merits were with the defendant, although the defense of tender was defective on account of the failure to bring the money into court, or tender it at the trial, and the court could not enforce the specific performance, because the party had not prayed it, decided to reverse and remand the case in order that the pleadings might be amended, unless the parties would consent to a judgment.

Appeal from Galveston. Tried before the Hon. Nelson H. Munger.

Suit by appellee against appellant to recover two lots of ground in the city of Galveston, and cancel a deed for same, which the defendant had obtained unfairly from the plaintiff. Answer of general denial; plea of not guilty; and special plea, that said deed mentioned in and made a part of said petition was executed by said Richard P. Jones, and tendered to this defendant in a suit brought by said Jones against this defendant, as stated in said petition, and that said suit was carried to the supreme court on a writ of error, and there determined in favor of this defendant; and defendant further says that afterwards, to wit: on or about the 26th day of March, A. D. 1852, said Richard P. Jones, by his attorney, Joseph A. Swett, entered into a settlement with this defendant, of said suit, and of the matters in controversy between them therein, in consideration of the terms of which settlement said Richard P. Jones, by his attorney aforesaid, caused said deed to be put on the records of Galveston county on the said 26th day of March aforesaid; that said deed having been so put upon record, the terms of said settlement were reduced to writing and duly signed by said Jones and this defendant, each acting by his attorney, on the 29th day of March aforesaid, and were to the effect following, that is to say:

(Style of case in supreme court.)

This case having been decided by the supreme court in favor of the plaintiff in error, and the judgment of the district court having been reversed and the cause remanded, and the parties being desirous of settling and adjusting the same, it is hereby stipulated and agreed that the same, and the matters connected therewith, shall be settled as follows: Said Jones to pay the costs of the supreme court, including the costs of the transcript of the record; each party to pay one-half of the costs in the district court; said Brock to pay said Jones the sum of three hundred dollars, one hundred of which is acknowledged to have been paid by Brock and received by Jones at this date, and the balance to be paid in sixty days from the date hereof at the office of L. Sherwood in Galveston--the deed from Jones to Brock to be put upon record. All further actions, suits and proceedings in the courts between the parties to be released and discontinued.

The plea then alleged the payment of the one hundred dollars; the subsequent ratification of the contract by Jones, and then continued as follows: In consideration of which settlement and ratification, and in pursuance thereof, this defendant was ready and willing, at the time and place appointed, to pay the amount agreed upon; and defendant further avers that he has always been ready and willing to pay the said balance, according to the terms of the settlement aforesaid, and still is ready to do so; and defendant insists that said agreement, in part performed on each side, to wit: by the recording of said deed and the payment of the said one hundred dollars, has been in no manner rescinded or annulled, but, on the contrary, is a good, valid and subsisting settlement, binding the respective parties thereto.

The plea then alleged that notwithstanding the said settlement, Jones had fraudulently obtained the deed from the clerk of the county court, and withholds it.

Then followed a special plea of purchase of said lots by the defendant in 1849, at sheriff's sale, on an execution against one Henry Klahn, and plea of the statute of limitations.

Then followed allegations that the plaintiff claimed under Klahn through a trustee sale, made after the debt was barred by the statute of limitations.

Wherefore, and by reason of the premises aforesaid, defendant prays that he be hence dismissed with his reasonable costs in this behalf incurred.

The evidence, so far as material to this report, is stated in the opinion. The petition contained a prayer for general relief, but did not contain allegations which could sustain a judgment for the money.

Sherwood & Goddard, for appellant.

Allen & Hale, for appellee.

HEMPHILL, CH. J.

An examination, seriatim, of the errors assigned, would neither be profitable nor, in some particulars, material to the decision; and I shall inquire only into the two really essential questions in the cause, viz.:

1st. Was the agreement of the 29th of March, 1852, ever binding upon the principals, Brock and Jones? and if so,

2d. Was it binding, or could it have been enforced at the commencement of this suit?

As to the first, no question has been made as to the authority of Sherwood to represent his principal, Brock. This is admitted. Nor can any objection be sustained to the agreement, for the want of authority in Swett to act for his principal, Jones. The latter having a full knowledge of the terms of the agreement, and of...