Cherry v. Newby
| Decision Date | 01 January 1854 |
| Citation | 11 Tex. 457 |
| Parties | JOHN CHERRY v. NEWBY. |
| Court | Texas Supreme Court |
Under a plea of performance, the defendant cannot prove that he was prevented from performing, by the act of plaintiff; and if such proof has been received, it should be disregarded.
Where the defendant had contracted to pay a certain amount in average cattle at a certain price by a certain day, to be delivered at a certain place, it was said that there must be a tender or delivery. or some act which would vest title to the property in the plaintiff, before the defendant would be discharged from his obligation. (Note 68.)
Appeal from Liberty. This action is brought on a written instrument by which John Cherry, the appellant, agreed to pay to Jonathan Newby, the appellee, by the first day of April, 1851, two hundred dollars, payable in cattle, at rates which were specified--the debt in any event to be collected alone in cattle; for value received. The instrument was dated on the 8th November, 1850, and a credit of ten dollars was indorsed.
The defendant, among other matters, pleaded that he had paid the obligation, by delivering the number of cattle, at the prices mentioned in the instrument, to the plaintiff; and further answered, that about the first day of April, 1851, and at several times thereafter, and before the filing of this suit, he did gather and put in the pen at Benjamin Ellis', which place was consented to by plaintiff, and did offer to the defendant the cattle mentioned in the obligation; that he informed the plaintiff the cattle were for him; that plaintiff, without objection, received them, and turned them out of the pen while the defendant was absent therefrom; and for further answer, the defendant alleged that he was ready, able, and willing, and did offer to deliver the said cattle at the time and place agreed upon, and has always been ready, able and willing to deliver said cattle.
From the testimony of the witness Jones, it appeared that the defendant had gathered, at the pen of Benjamin Ellis, a parcel of cattle for the purpose of paying Newby; that there were sufficient number in the pen to pay Newby, but Cherry refused to let him have those cattle, as he wanted to gather some wild cattle, in order to let Newby have them; that Newby had sixty head of his own, in the same pen; that they remained in the pen four or five days without water; that John Cherry having gone home, and the cattle suffering for water, they were turned out by Newby, he being unable to separate his from Cherry's; that there was no tender of the cattle to Newby; that Newby insisted on taking these cattle, but Cherry refused.
The witness Snell testifies that he heard Cherry tell Newby he was gathering the cattle for him.
Wm. Cherry states that he heard defendant tell plaintiff that the cattle in the pen were for him, the plaintiff.
The defendant requested instructions to the jury, the first two of which were to the effect, that if they believed from the testimony that the defendant was able and willing to deliver the cattle, and had them penned for that purpose at the time and place designated, and that the plaintiff prevented him from designating the cattle, by turning them out in defendant's absence, and without his knowledge, it would discharge the contract, and they must find for defendants.
These instructions were refused; but the...
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Huber v. St. Joseph's Hospital
...performed, as it negatives instead of supports the issue." (Fauble v. Davis, 48 Iowa 462; Stone v. Dennis, 3 Port. (Ala.) 231; Cherry v. Newby, 11 Tex. 457.) J., AILSHIE, J. Stockslager, C. J. Ailshic, J., and Sullivan, J., concurring. OPINION The facts are stated in the opinion. SULLIVAN, ......
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...court, as it was not warranted by the pleadings, it cannot be looked to as the basis for relief. (Hall v. Jackson, 3 Tex. 305; Cherry v. Newby, 11 Tex. 457; Norvell v. Oury, 13 Tex. 31)." (Emphasis The insurer's pleading of the unauthorized settlement established a defense to plaintiffs' cl......
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...contract for the parties. It seems to be the rule, also, that an offer to perform will not sustain the allegation of performance. Cherry v. Newby, 11 Tex. 457. It is clear, in this case, that the evidence objected to did not show performance, but only an offer to do so, and an excuse for no......