The opinion of the court was delivered by
This was an action brought by H. P. Brockett against J. H. Snyder, as principal contractor, and O. C. Pratt, W. H. Cartier and G. W. Westlake as guarantors, upon a certain contract and guaranty, whereby it was agreed that Snyder should deliver to Brockett certain Texas cattle. That part of said contract which includes Snyder’s-agreement reads as follows:
Said Snyder, “ the party of the second part, agrees, between the first and fifteenth day of June 1875, to deliver to the-party of the first part twenty-five head of good, average Texan cows, from four to seven years old; each cow to be with calf, or have one at her side.”
The consideration for this agreement was, a “ black stallion horse, and a two-horse wagon.” Said guaranty reads as follows:
“I hereby acknowledge myself security for J. H. Snyder on above contract, and I guarantee that he will comply with the same, and deliver the cows as agreed. Q. C. Pratt.
“W. H. Cartler.
“G. W. Westlake.”
2. Contract; delivery of property; demand. After the plaintiff rested, the defendant demurred to the evidence, on the ground that it did not prove a cause of action. The court below overruled the demurrer. This is second ruling of which the plaintiff in error complains. We think that this ruling was also correct. The defendant claimed that no cause of action had been proved, merely because no demand for the cattle had been proved. The cattle however were not to be delivered upon demand. Snyder had no right to wait for a demand. It was his duty to deliver the cattle, or to tender them, or at least to try to tender them, at some time between the first and the fifteenth of June 1875, without waiting for any demand. They were not due on demand, but were due
3. Judgment in excess of amount demanded. After said demurrer was overruled the case was submitted to the jury, and the jury found in favor of the plaintiff and against the defendant, and assessed the damages at $664.42. The defendant then moved the court for a new trial, upon various grounds, which motion was overruled, and the court then rendered judgment in favor of the plaintiff and against all the defendants for said sum of $664.42. The defendant Pratt now claims that this was error, and we think that in part it was. The plaintiff only claimed in his petition a judgment for $625, and this was all that the court could properly render a judgment for. The plaintiff Brockett however now offers to remit the excess over $625. The cause will therefore be remanded to the court below, with the order that said excess be deducted, and that the judgment be so modified as to make it a judgment for only $625, and costs.
The costs of this court will be equally divided between the parties.