By Paragraph 5(b) the Association is to sell the cotton before another crop is produced, with certain exceptions. The text writers and cases next cited give many instances of contracts which did not fix precise dates for performance, yet were held or considered sufficiently definite: Elliott on Contracts, supra; Cowart v. Edwards, 4 Texas Civ. App. 276[ 4 Tex. Civ. App. 276], 23 S.W. 569; Lange v. Caruthers, 70 Tex. 722, 8 S.W. 604; Wright v. Farmers Nat. Bank, 31 Texas Civ. App. 406[ 31 Tex. Civ. App. 406], 72 S.W. 103. We think this is sufficiently definite.
In Salinas v. Wright, 11 Tex. 572, the Supreme Court held, that on a promise to pay a certain sum "so soon as circumstances will permit me", it was imposed upon the plaintiff to allege the ability of the defendant to pay. See, also, Van Norman's Ex'rs v. Wheeler, 13 Tex. 316; Northern Texas Utilities Co. v. Community Natural Gas Co., Tex. Civ. App. 297 S.W. 904, on subsequent appeal, Tex. Civ. App. 13 S.W.2d 184; Sovereign Camp, W. O. W., v. Cooper et al., Tex. Civ. App. 208 S.W. 550; Wright v. Farmers' Nat. Bank, 31 Tex. Civ. App. 406 72 S.W. 103 (holding that plaintiff could not recover on defendant's promise to pay as soon as he could, where he did not allege defendant's ability to pay). It is fundamental that where one relies for recovery upon a contract which imposes conditions precedent upon him, he must allege performance of such conditions, otherwise, his pleadings are subject to general demurrer.
Such a contract under Texas law would impose merely a conditional obligation on the debtor to pay, and he would be under no legal duty to make payments unless his financial situation permitted it. Thus a creditor could enforce such an obligation only by showing that the promissor has sufficient funds to make payment. See Brickley v. Finley, Tex.Civ.App. 1940, 143 S.W.2d 433; Wright v. Farmer's Nat. Bank, 1903, 31 Tex. Civ. App. 406, 72 S.W. 103, and the cases cited therein. Cf., Worth Petroleum Co. v. Callihan, Tex.Civ.App. 1935, 82 S.W.2d 1060.
Such a contract under Texas law would impose merely a conditional obligation on the debtor to pay, and he would be under no legal duty to make payments unless his financial situation permitted it. Thus a creditor could enforce such an obligation only by showing that the promissor has sufficient funds to make payment. See Brickley v. Finley, Tex. Civ. App. 1940, 143 S.W.2d 433; Wright v. Farmer's Nat. Bank, 1903, 31 Tex. Civ. App. 406, 72 S.W.103, and the cases cited therein. Cf., Worth Petroleum Co. v. Callihan, Tex. Civ. App. 1935, 82 S.W.2d 1060.
Such a contract under Texas law would impose merely a conditional obligation on the debtor to pay, and he would be under no legal duty to make payments unless his financial situation permitted it. Thus a creditor could enforce such an obligation only by showing that the promissor has sufficient funds to make payment. See Brickley v. Finley, Tex. Civ. App. 1940, 143 S.W.2d 433; Wright v. Farmer's Nat. Bank, 1903, 31 Tex. Civ. App. 406, 72 S.W. 103, and the cases cited therein. Cf., Worth Petroleum Co. v. Callihan, Tex. Civ. App. 1935, 82 S.W.2d 1060.
No title or lien, legal or equitable, in the property of Claud Lewis arose to his brother B. H. Lewis by reason of the improvements made by him, as the evidence showed that it was the intention of the parties that such improvements should become part of the realty and that if Claud Lewis should sell the property he would compensate B. H. Lewis for the improvements placed thereon. Bass v. Metropolitan West Side El. Ry. Co., 82 Fed., 857, 39 L. R. A., 711; 36 C. J., 176, 177, 187; Lange v. Caruthers, 80 Tex. 718; Wright v. Farmers Natl. Bank, 72 S.W. 103. W. Marcus Weatherred, of Coleman, for defendants in error.
A promise to pay money as soon as the promisor is able, as soon as circumstances will permit, or at the earliest possible moment is a conditional promise. Rowlett v. Lane, 43 Tex. 274 (1875); Salinas v. Wright, supra; Wright v. Farmers' Nat'l Bank, 31 Tex. Civ. App. 406, 72 S.W. 103 (1903); 14 Tex.Jur. III, Contracts ยง 273, (1981). It is at this point that the rule of Salinas v. Wright, supra, controls.
Such phrases as 'as soon as circumstances will permit me'; 'when he was able'; 'as soon as he could' have been held conditions upon which the promise to pay depends. Salinas v. Wright, 11 Tex. 572, 575; Mitchell v. Clay, 8 Tex. 443; Wright v. Farmers National Bank, 31 Tex. Civ. App. 406, 72 S.W. 103. The Supreme Court in Ferguson v. Mansfield, 114 Tex. 112, 263 S.W. 894 (1924) stated:
If plaintiffs intended to recover upon the basis of the Settlement Agreements, their pleading should have included an appropriate allegation that the conditions precedent had occurred. Salinas v. Wright, 11 Tex. 572, 576 (1854); 71 C.J.S. Pleading ยง 80, p. 193; Wright v. Farmers' Nat. Bank, 31 Tex. Civ. App. 406, 72 S.W. 103, 104 (1903, no writ). Cf. Burlington-Rock Island Railroad Company v. United States, 321 F.2d 817, 821 (5th Cir., 1963), construing Texas law.
Our courts, in line with the weight of authority, hold that such promises are conditional. Rowlet v. Lane, 43 Tex. 275; also, Wright v. Bank, 31 Tex. Civ. App. 406, 72 S.W. 103, and cases therein cited. But in this case we are asked to go further, and to hold that even though the debtor did not protect himself by stating that his promise was to be performed in a certain event or under certain circumstances, still, as he stated his inability to pay at the time, we should imply that his promise to pay was conditional, and to be performed only upon his becoming able to pay. While we find a few cases, not accessible to us, cited under Benton v. Benton, as apparently holding that statements merely of inability to pay constitute a condition to pay when able, we find no Texas case so holding, and we are of the opinion that when a promise to pay is made, as in this case, the mere fact that it is coupled with statements of inability to pay at the time, expressions of regret on account thereof, and of hope of being able to pay in a little while, such promise is not a conditional one.