Shirkey v. Hunt , 18 Tex. 883 ( 1857 )

Hemphill, Ch. J.

There is no error in the judgment. The contract was forfeited at law, on failure to pay the first note. This was waived by the partial payment received in February, 1853. But after the maturity of the second note, the defendant acknowledged his inability to comply with the contract. There was then a second forfeiture at law, from which the defendant might have been relieved in equity, had he shown circumstances entitling him to relief, the time of performance not being, in this instance, of the essence of the contract. But no such defences were set up, and the parties formally rescinded their first contract of sale and purchase, and entered into a new agreement variant from the former in the amount of the purchase money, with a great extension of the time of payment. The second contract is not affected by the fact that there had been a previous contract between the parties for the sale of the land. The former contract was virtually at an end before it was formally rescinded by the parties. The plaintiff might have sold the land to any one, especially on refunding to the defendant, as he offered to do, the partial payment that had been made by him, and the sale would have been valid— the defendant, however, being entitled to any equities which might have excused and cured his delay. At all events, there was no legal impediment to prevent the parties from making the new agreement.' Under the circumstances, there is no presumption that the first contract was the consideration of the second. The proof is positive that it was not the consideration ; but that the land which had been forfeited was the consideration, and the plaintiff has a right to recover in this suit, according to the terms of the agreement.

There was no error in setting aside the verdict on the former trial. The verdict was against law. The Court erred in declining to give the first instruction asked by plaintiff’s counsel at that trial, and though the charge of the Court was sound law, and was equivalent, in legal effect, to the instruction which was refused, yet without some further explanation it was not likely to be clearly understood by the jury, and they might act upon very inaccurate and confused notions of its import and meaning.

The law of the case was properly represented to the jury at the second trial.

Upon the view which has been taken of the transaction be. tween the parties, no question of usury can arise in the case, and it is not necessary to consider any of the suggestions or positions of the defendant touching the question of usury. (Beete v. Bidgood, 7 Barn. & Cres. 453.)

Judgment affirmed.