Ramon Barreda sued Craig, Thompson & Jeffries to recover damages in the sum of $2,394, alleging that on January 9, 1914, at Laredo, Tex., he entered into a written contract with said defendants for the sale of all the cattle he had, located at Candela, Coahuila, in the republic of Mexico, for which defendants agreed to pay $19 per head, United States currency, except for calves, for which only $5 per head was to he paid; that defendants were also to pay all expenses for gathering the cattle and bringing them to Texas, including consular papers, duties, and other expenses that might occur, and the cattle were to be paid for as. soon as they reached the American side of the Rio Grande at Eagle Pass, Tex.; that the cattle were gathered and were about to he taken across the Rio Grande, when defendants Thompson and Craig, acting for defendant firm, represented to plaintiff in Eagle Pass that the authorities in Mexico were charging and demanding that 10 pesos per head be paid before they would permit the cattle to be' taken across the line, and requested plaintiff to reduce the price to $12 per head for the cattle; that thereupon plaintiff advised defendants to pay the duty and cross the cattle, and if in fact they had to pay 10 pesos per head plaintiff would accept $12 per head for the cattle and deliver the cattle ; that the defendants thereupon paid the duty required of them and crossed the cattle, and in answer to inquiry made by plaintiff, who did not know what amount had been exacted, represented to plaintiff they had paid 10 pesos per head as duty, and, relying upon such representation, plaintiff accepted the $12 per head and delivered the cattle; that this representation was false, as defendants did not pay said amount or anything near that amount, and was fraudulently made to induce plaintiff to accept the reduced price. Plaintiff alleged that the difference in the sum contracted to he paid and the price accepted on account of such representation was $2,394. He also alleged that the original contract had not in any way become oppressive upon defendants, and that there was no consideration moving from them to him for the alteration of the original contract.
Defendants answered by general denial and a special answer to the effect that before the cattle reached the border defendants were informed that the Huerta government, then in control of the Mexican part of Piedras Negras, had levied an export tax or duty of 10 pesos per head on all cattle exported; that defendants, believing said tax had been levied, informed plaintiff that by reason of the changed conditions arising subsequent to the execution of said contract, and the probability that the crossing of the cattle would be delayed and rendered more expensive than was originally contemplated, they could not and would not carry out said contract according to its original terms; that thereupon plaintiff opened negotiations for a mutual modification of the contract, *869and a modification was agreed to by wbicb defendants were to pay $12 per head for all cattle delivered and to bear all the costs and expense of crossing the same; that pursuant to this agreement the defendants paid the charges and crossed the cattle, and plaintiff then delivered said cattle to defendants, who paid him $6,504 for same, and plaintiff executed to defendants his bill of sale therefor.
The court gave a peremptory instruction in favor of plaintiff, and upon the verdict returned pursuant thereto entered judgment for the amount sued for.
The petition, in substance, alleges that it was agreed to modify the original contract provided a duty of 10 pesos per head was exacted; that in fact no such duty was exacted, but by fraudulent representations defendants induced plaintiff to believe that such a duty had been collected, and by reason of such fraud plaintiff parted with his cattle for less than he was entitled to receive. There is no allegation that such conditional modification was induced hy fraud, accident, or mistake, but it is averred that the original contract did not become burdensome upon defendants, and that no consideration inured to plaintiff for such conditional modification.
Defendants filed a general denial, and then pleaded that a substitute contract had been made, setting out the- terms thereof, and that it had been fully performed by both parties thereto.
The testimony introduced in behalf of each party corresponded with his pleadings, thus making issues of fact to be determined by the jury, unless plaintiff is entitled to recover upon the original contract the sum sued for by him, upon the theory that the obligations thereby created remain in full force and effect.
This is a case in which the buyer refused to perform his contract, while something remained to be done by both parties thereto, whereupon a substitute contract was entered into by which the seller agreed to accept a lower price than that named in the contract if the buyer would take the cattle, and such substitute contract was fully performed by both parties, the cattle being delivered and tne price named in the substitute contract paid.
We state the case in accordance with defendants’ pleadings and evidence because it is proper to do so in determining whether the court should have given the peremptory instruction. The case of Jones & Carey v. Risley, 91 Tex. 1, 32 S. W. 1027, is authority for the proposition that the seller could not have enforced the substitute contract, because it was not based upon a new consider-, ation, even though made at a time when neither party had fully performed his part of the contract. But this is not a suit to enforce the substitute contract. That contract was fully performed by both parties. The suit is upon the original contract for the difference between the price contracted to be paid under such contract and the price received under the substitute contract. Many authorities on the subject of consideration for new agreements abrogating or altering prior contracts will be found collated and discussed in the note to Morecraft v. Allen, L. R. A. 1915B, 1, and in the editor’s “Conclusion” to the note appears the following statement:
“If a now agreement abrogates, alters, or supplants an old one, and is fully executed by performance on both sides, inquiry into its consideration is closed.”
We believe the rule just stated should be applied in this case. When the buyers refused to carry out their contract, the seller could have treated it as breached and have sued for damages, but, being unable to find another buyer, he entered into negotiations with the buyers which culminated in the making of the substitute agreement. That agreement was fully performed, and the seller should not be permitted to sue on the original contract as if it had been carried out in every respect except that the seller had not been paid all the purchase money stipulated therein to be paid by the buyers.
The judgment is reversed, and the cause remanded.