Cherry v. Newby
Texas Supreme Court
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.
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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;…
1Opinion of the Court
Hemphill, Ch. J.
The only error assigned, requiring no*459tice, is the refusal of the Court to give the first and second charges asked by defendants.
It will be perceived that the defendant, in these charges, places his discharge from liability on the ground of the default or misconduct of the plaintiff, by which the defendant was prevented from making a tender and delivery of the property, as he was able and willing to have done.
There was no error in refusing these charges. The defence set up in the pleadings was, 1st. That he had delivered the cattle; 2nd. That he had tendered them, and they were…
2Cited by7 opinions
- Texas Banking & Insurance v. StoneTexas Supreme Court · 1878
- Edrington v. NewlandTexas Supreme Court · 1882
- City of Laredo v. RussellTexas Supreme Court · 1882
- Huber v. St. Joseph's HospitalIdaho Supreme Court · 1905
- Bradford v. WhitcombCourt of Appeals of Texas · 1895
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