Harriet E. Moore and her son Tom Moore conveyed to appellant a lot in the town of Livingston and a tract of land near the town of four acres, for which he executed a contract in the form of a promissory note for the delivery to Harriet Moore or order .50,000 feet of lumber on the 1st of September, 1884. Mrs. Moore transierred the obligation to her son, to whom Fisher delivered one-half of the lumber before the obligation became due. Tom Moore then assigned the contract to appellees. Fisher having declined to deliver the lumber the assignees brought this suit to recover damages and obtained a judgment.
The defenses set up in the court below were (1) that Tom Moore, who made the sale, represented to the defendant that the title was good, but that the title had wholly failed; and (2) that no demand was made upon defendant for the lumber before suit.
The defendant testified that “Tom Moore at the time of the trade represented that the title to the land was perfectly good; that they had a good title from George W. Davis and also had title by limitation.” It was agreed that the survey of which the lot was a part “was titled by the government of Mexico ” to M. L. Choate, and defendant introduced a deed from Choate to Polk County for a portion of the league and showed that the lot was a part of the land so conveyed, but made no further proof as to the title. He also testified that being threatened with a suit and being satisfied his title was not good he had conveyed the lot to the Presbyterian Church to whom the county had leased it for ninety-nine years.
If defendant after having conveyed such title as had been granted to him by the vendors of the lot, and after having placed it out of his power by such action to reconvey to them or their assigns such title as he had received, could be permitted at all to defend against his contract on the ground of failure of title, it could only be by showing absolutely that the vendors had no title whatever and especially that they did not have such title as they represented. He made no offer to show that his vendors did not have title by limitation, and we think this was fatal to this special defense.
*436The contract provided that the lumber should be delivered upon the cars upon the order of Mrs. Moore, and_that it should be of such dimensions as she should direct. Ho order for the lumber was proved, and it is claimed that in the absence of proof of a demand according to the terms of the agreement the plaintiff was not entitled to recover. It was however shown that in a short time after the obligation matured the attorney for the plaintiffs called upon the defendant for a settlement, and that he was told by the defendant that the title to the lot had failed and that he made no offer to the attorney to deliver the lumber. He had. previously informed the plaintiffs that he would not deliver it on account of the failure of title to the lot. This must be deemed a waiver of any further demand. A special demand stating the quantities and dimensions of the lumber after this would have been but an empty form. Besides the contract stipulated that the lumber was to be delivered upon the cars, and it is to be presumed that the parties contemplated that it was to be shipped to such purchasers as the holder of the agreement might be able to procure. After defendant’s refusal to comply plaintiffs, could not have contracted safely with third parties for the delivery of lumber from this source. We think no further demand than that shown in the evidence was necessary.
It is also insisted that there was no competent proof of the value of the lumber at the time and place of delivery. The lumber was to be delivered in Livingston. The testimony of the witness Moore as to the price in Belton was irrelevant. The only other evidence as to value was that of a witness testifying at the place of delivery that he “thought that lumber was worth about $10 per thousand feet.” There is a bill of exceptions in the record which shows that defendant objected to the proof of the value of the lumber offered upon the ground that the evidence was not confined to the time and place of delivery and the quality of the lumber mentioned in the contract. The objection was overruled, but what particular testimony was admitted over the objection does not appear. A modification was appended to the bill by the trial judge, who-states that “the testimony showed that the value of the 25,000 feet of lumber rapaid was $10 per thousand feet, making $250. Ho specific objection was made to this.” The defendant subsequently testified in the ease, and the presumption is that he knew the value of the property he had contracted to deliver, and that if it was not worth at the time of the delivery the amount testified to by plaintiffs’ witness he would have said so. We think that the evidence in connection with plaintiffs’ failure to testify upon the point warranted the finding of the value of the lumber at the time of the breach of the contract, although the witness did not expressly say the lumber was worth so much at that date. The fact that the evidence showed only the value of lumber generally could not have prejudiced the defendant, because his contract called for first class mer*437chantable lumber. If lumber generally is worth $10 per thousand feet, first class lumber must be worth as much. The lumber having been paid for in advance the plaintiffs were entitled to recover the highest market price of the lumber at any time from the demand to the day of the trial, but it may be not to interest from the date of the breach. ■ Masterson v. Goodlett, 46 Texas, 403. But the judgment and findings of the court show that the court found the value of the property at the date when the lumber should have been delivered, and we think the facts and circumstances in evidence warranted the conclusion of value so found.
It is also complained that the court erred in its conclusion of law that the measure of plaintiffs’ damage was the value of the lumber with interest from January 1, 1884. This is erroneous, but the error is evidently clerical. The judgment shows upon its face that in computing the damages interest was allowed from the day on which the suit was brought. The evidence was that defendant was called upon for a settlement and declined it after the contract matured and before the suit. The exact date was not fixed, and hence the court, construing the evidence upon this matter most favorably to the defendant as it should, only allowed interest from the date of the institution of the suit.
This disposes of the material questions in the case. There are other assignments of error to the findings of the court, but they relate to matters which in the view we take of the case were not material to its proper disposition.
There being no material error in the proceedings of the court below the judgment is affirmed.
Affirmed.
Opinion January 18, 1889.