First National Bank v. Lynch

HEAD, Associate Justice. We find the evidence sufficient to sustain the verdict of the jury in finding that the value of the stallion and mares was fixed by agreement of the parties at time of the trade, and there was therefore no such uncertainty in appellee’s counter-claim as would prevent him from pleading it in setoff to the note sued on by appellant. We *592 do not mean by this, however, to be understood as holding, that had the amount of appellee’s claim for the failure to deliver these horses been left to be ascertained by evidence as to their reasonable value, this would constitute such uncertainty as would prevent the assertion of the debt in setoff to appellant’s note, under our statute. Jones & Co. v. Hunt, 74 Texas, 657; Riddle v. McKinney, 67 Texas, 32; Duncan v. Magette, 25 Texas, 251. Delivered March 7, 1894. Under the facts as established by the verdict in this case, we do not think the question of liquidated damages or penalty is raised. The case bears a stronger analogy to a contract for the sale of a horse at an agreed price, which could be paid by the delivery of other horses or the proceeds of their sale, made in compliance with the contract, within a reasonable time, upon failure to do which the obligation becomes a moneyed demand for the stipulated amount. Short v. Abernathy, 42 Texas, 94; Bummell v. City of Houston, 68 Texas, 12, and cases there cited. We do not think appellee estopped by his demand upon appellant for $470 as the balance due him on the trade. This was not paid by appellant, and under the circumstances was only evidence to go to the jury in so far as it might throw light upon the terms of the actual trade, and appellee was, therefore, correctly allowed to explain the circumstances under which the letter was written making this demand. The jury did not err in allowing appellee interest upon the amount due him from the 1st of January after the accrual of the debt. We think it clear from the evidence a reasonable time had elapsed for the delivery of the mares, although no witness seems to have testified in terms to this. At any rate, appellant, by selling the mares at less than the agreed price, had placed it out of its power to make the delivery, and we think appellee’s claim was due from this time. It is unnecessary for us to decide as to whether or not interest should have been calculated from this date, as it was allowed only from the 1st of January thereafter. • It is true the verdict shows that the jury allowed appellant only $60 attorney fees upon its note, when they should have allowed $66.36; but it also shows that they allowed $84 interest, when they should have allowed only $63.60. The gross amount allowed appellant was therefore $14.36 more than it was justly entitled to receive, and we are therefore of opinion that it has no just cause of complaint as to the amount of the finding in its favor. Finding no error in the judgment as rendered by the court below, it will be in all things affirmed. Affirmed.