Hanks v. Pickett , 27 Tex. 97 ( 1863 )

Wheeler, C. J.

The charge of the court appears to have proceeded upon the ground, that time was of the essence of the contract, and that the defendant was bound to procure the title within the time specified in his bond or forfeit his right, unless prevented by the plaintiff. We do not so regard it. The object was to procure the title. If this object was attained, the purpose which the parties had in view was accomplished; and it is not perceived that it could work any injury to the plaintiff, if it was delayed beyond the time specified in the bond, if the delay was not for an unreasonable length of time. It was not in the power of the defendant to procure the title until the plaintiff went before the court and made proof of his rights, and obtained the pre-emption certificate. Although he had not expressly undertaken to do so, yet this undertaking on his part was necessarily implied. When called on, he did not object on the ground that the defendant had not been sufficiently diligent. He ought then to have procured the certificate, or, when he was ready to do so, to have notified the defendant, in order that he might be enabled to proceed to the fulfillment of his contract. Then, if he failed to fulfil it within a reasonable time, the plaintiff might have taken advantage of his default. But having declined to afford the defendant the opportunity when he should have done so, he was taking advantage of his own wrong when he proceeded to obtain the title himself, and then sought to annul the contract which he had thus prevented the defendant from performing.

We think the court erred in the charge to the jury, and that the verdict is not warranted by the evidence. The judgment is reversed, and the cause remanded.

Reversed and remanded.