Fisk v. Holden
Texas Supreme Court
Appeal from Travis. Tried below before the Hon. Thomas H. BuVal. Suit by appellee against appellant, commenced in a Justice's Court, on a promise in writing as follows : I promise to pay G. W. Holden or order one hundred dollars, which may be discharged by delivering to him the mare which I got of him, or any other nag worth one hundred dollars. If the nag which I tender Mm is not worth a hundred dollars, I am to pay Mm .the balance in cash.
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Appeal from Travis. Tried below before the Hon. Thomas H. BuVal. Suit by appellee against appellant, commenced in a Justice's Court, on a promise in writing as follows : I promise to pay G. W. Holden or order one hundred dollars, which may be discharged by delivering to him the mare which I got of him, or any other nag worth one hundred dollars. If the nag which I tender Mm is not worth a hundred dollars, I am to pay Mm .the balance in cash. The horse or mare to be delivered at the Spring Term of the Burnet District Court. November 23rd, 1854. (Signed by the defendant.) Judgment in the…
1Opinion of the CourtWheeler, J.
The material question is whether the defendant proved upon the trial a tender according to the terms of his contract. We arc of opinion that he did not. For the proofs in the ease we must look to the statement of facts, and not to any depositions in the record not referred to, or in any way made a part of the statement of facts. We there find evidence of the tender of either one of two horses, if received in full satisfaction of the debt. None other is proved to have been tendered, and neither of these to have been of the required value. One witness estimates them to be worth each one hundred…
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