Calicote v. Spencer , 25 Tex. 149 ( 1860 )

Bell, J.

—We are of opinion, that there is no error in the judgment. The case was fairly presented to the jury by the charge of the court. The evidence sustained the allegation of the plaintiff’s last amended petition, that the bond had been executed in consideration of a precedent indebtedness by Calicote to the appellee. This being so, the judge properly instructed the jury that, upon the failure of the obligors in the bond to execute the deed according to the stipulation of the bond, it was the privilege of the appellee to sue either for a specific performance •of the bond or to recover the penalty. The court did not assume in the charge that the purchase-money had been paid' for the land by the appellee prior to the execution of the bond, as is contended by counsel, but left the question of fact to be determined by the jury. The defendants in the court below showed no equitable excuse for not complying with the obligation of the bond, and the appellee was not bound, at so long á time after the breach of the bond and when the property had depreciated in value, to receive the deed tendered by the surety in the bond.

• 'The judgment of the court below is

Affirmed.