Atterbury v. Biggerstaff

Citations

• 36 Tex. 177

Syllabus

<p>1. Suit by payee of following instrument, against the maker : “ December “ 28th, 1861. On or before the first day of June, 1862,1 promise to pay “ B. six hundred dollars, in stock cattle, at six dollars per head; the “ said B. to hunt, mark, and brand such of my-stock cattle as he can find “ in my stock in F. and H. counties, to the amo.unt of said sum of six “ hundred dollars.” Held, that this instrument does not evidence a sale of cattle at its date, so as then to pass the property from the maker to-the payee. The property in the cattle remained in the maker until they should be appropriated by the payee ; and if there was not, within the counties named, a sufficient number of the maker’s specified stock to discharge the instrument, and the payee gathered all that he could gather by the exercise of ordinary diligence, and credited the instrument with their agreed price, then he was entitled to a monied judgment against the maker for the unpaid balance of the instrument.</p> <p>2. Qucere : If there had been enough cattle in the designated range to pay the whole debt, and the debtor interposed no obstacle to the gathering-of them by the payee, would the debtor be wholly exonerated of the-debt, or could he still be held liable for cattle equivalent to the debt 2</p>