Madison Jones v. Sarah J. Jones et al., 49 Tex. 683

Moore, Associate Justice. Although the result reached by the verdict of the jury may not materially vary from our conception of the abstract justice and equity of the case as exhibited by the facts developed upon the trial, there are palpable errors shown by-the transcript of the record of the proceedings in the court below, for which the judgment must be reversed.

Neither the petition nor amended petitions of the appellees (the plaintiffs in the court below) present in clear and distinct terms the contract sought to be enforced, as is required in an action of this kind; neither the aggregate amount to be paid for the land, nor time at which the different installments were payable, is stated; and the averments of performance, or of the facts relied upon to excuse literal performance of the contract on the part of the alleged purchaser, are certainly but vaguely and indefinitely stated,—if, indeed, the averments of - the petition and amended petition in these particulars are not repugnant and contradictory.

It is a fundamental rule, in actions of this character, that the consideration for the agreement, the time and manner of its performance, and in fact all of its essential terms and stipulations, must be clearly and definitely alleged as well as proven, to warrant the court in granting the relief here sought. As the petition was defective in these particulars, although a meritorious ground of action may be .inferred from its averments, we think it clear that some at least of appellant’s special exceptions should have been sustained. .(Gaskins v.

Peebles, 44 Tex., 390.) " There is also error in the verdict of the jury, in the statement .of the account between appellant and "William G. Jones. The plaintiffs in the court below do not pretend that more than two or three installments of the purchase-price for the land had been paid, when he (i. e., William G.

Jones) died; nor do they deny that the largest part of the purchase-money was actually paid by appellant after his death; yet they neither alleged nor proved a legal or bona-fide tender to appellant of the balance of the purchase-money thus paid by him, to which he is unquestionably entitled if appellees recover the land. It was, therefore, error to charge him with rent, and refuse to allow him interest on the balance of the purchase-money which he had paid on the land in place of plaintiffs or their . intestate, as by the terms of the contract upon which the suit is founded it should have been.

To avoid error on another trial, it is proper for us to say, if the facts sustained appellees’ theory of the case, appellant, who was authorized by his son William G. Jones to take possession of and sell his property for the payment of his debts, unquestionably was not entitled to claim on a settlement with his son, or his heirs and representatives, anything more than he actually paid in discharge of them, whether he sold the property of his son for the purpose of settling them or not.

If, therefore, appellant paid the balance due the State for. the land in Confederate money or State warrants, he was only entitled, at most, to charge his son with the value in money of such payments at the time they were made, and interest thereon until paid.

In offset, however, of the amount thus advanced by appellant, he was liable to account to appellees for the rent or use and occupation of the land from the time he went into possession of it, and for the waste, if any, wrongfully committed by him while in possession of it; and to entitle appellees to specific performance, they must, when the account .is properly taken, promptly pay, as ordered by the court, the amount, if any, found to be due appellant. The judgment is reversed and the cause remanded, to be x proceeded with in the court below in accordance with the views expressed in this opinion.

Reversed and remanded.