Kelly v. Webb
Texas Supreme Court
Appeal from Karnes. Tried below before the Hon. M. P. Norton. Suit by the appellant against the appellee upon the following instrument: “ On or before the first day of November next, I promise to pay W. G. Kelly five hundred bushels of corn, in the heap, in my field. (Signed). “ Thomas F. Webb.
Read the full summary
Appeal from Karnes. Tried below before the Hon. M. P. Norton. Suit by the appellant against the appellee upon the following instrument: “ On or before the first day of November next, I promise to pay W. G. Kelly five hundred bushels of corn, in the heap, in my field. (Signed). “ Thomas F. Webb. “December 7th, 1856.” The plaintiff averred a demand on and a refusal by the defendant to deliver the corn, and alleged its value, on the 1st of November, 1857, to be two dollars per bushel, or, in the aggregate, one thousand dollars, for which he prayed judgment. The defendant answered, in substance,…
1Opinion of the CourtMoore, J.
The contract between the parties to this suit, as shown by the record, presents clearly a case of mutual and dependent promises. Neither party was entitled to enforce from the other a fulfilment of the contract without at the same time performing its stipulations on his part. Kelly most certainly could not require Webb to deliver him the corn without tendering him the amount he had contracted to pay for it.
Nor, in cases such as this, can a plaintiff maintain his suit without proof of demand, or of such facts as in contemplation of law are tantamount thereto, but this Kelly failed to do, and…
2Cited by11 opinions
- Dobbins v. ReddenTexas Supreme Court · 1990
- Investors' Utility Corp. v. ChallacombeCourt of Appeals of Texas · 1931
- Todd v. State BankSupreme Court of Iowa · 1917
- Adams v. HughesCourt of Appeals of Texas · 1911
- Lake LBJ Municipal Utility District v. CoulsonCourt of Appeals of Texas · 1985
6 more not listed; retrieve them via the Exa API.