Appellee brought this suit to recover from appellants money due him for pasturing cattle in pursuance of the following agreement:

" This agreement, entered into by and between E. Corkill, party of the *601first part, and Meuly Brothers, parties of the second part, to this effect:

“ The said E. Corkill, party of the first part, agrees to pasture for the parties of the second part about 2000 head of cattle at the rate of 12-s-cents per month, for a term not longer than eight months, and give all possible protection for the safety and benefit of said cattle.

“The said parties of the second part agree to pasture about 2000 head of cattle with the said party of the first part and pay for the same at the rate of 12-} cents per head per month, to commence from the time said cattle are put on the range, calculated to be within the next twenty days; reserving the right to move said cattle at any time that they may be liable to loss for lack of grass or water, and paying at the above rate for the time expired.

“Witness our signatures at Realitos, Texas, this 24th day of August, 1886.

“E. Corkill,

“Meuly Brothers.”

The plaintiff set out the agreement and alleged that defendants at dates named placed upon his range specified numbers of cattle, which were pastured by him as he had contracted to do until the 8th day of March, 1887, for which he prayed judgment according to the contract price, with interest from the last named date.

The defendants demurred generally and specially, and pleaded in re-convention that plaintiff did not comply with the terms of his contract and furnish their cattle with sufficient grass and water, by reason of which a specified number of them, of a specified value, died from starvation, and the remainder became poor and unfit for market, whereby they were damaged a specified sum, for which, and for defendants being compelled to be at an increased expense in removing their cattle from the pasture before they were prepared to do so, and for plaintiff’s willful and malicious misconduct in not furnishing sufficient pasturage, they pray judgment for damages.

We think the exceptions were properly overruled.

Other assignments of error relate to charges given and refused.

The evidence as to the supply of grass and water in the pasture was conflicting, and the errors complained of with regard to the charges relate to that issue. The evidence shows that defendants became dissatisfied with the pasture and the condition of their cattle in the latter part of Eebruary, 1887, and promptly withdrew the cattle from the pasture.

Plaintiff received all of the cattle offered by defendants.

Mo question is made about the sufficiency of the area of the pasture or as to the want of protection furnished the cattle, or to anything except as to the convenience and quantity of the supply of water and grass.

We think it clear that plaintiff did not bind himself to furnish pasture for the cattle for the full period of eight months, or any longer than he *602in fact did furnish it. There is nothing in the record to indicate that, the situation and condition of the pasture were not open to the observation of defendants, or not known to them in all respects when they made; the contract. The evidence shows that the pasture, all the time that it was occupied by defendants’ cattle, contained both.grass and water. The' contract did not make plaintiff responsible for the continuance of the supply of either, but on the contrary defendants expressly reserved to-themselves the right of determining as to these things, and of protecting themselves from such loss by withdrawing their cattle at any time. They as expressly agreed that when they did exercise their right of withdrawing their cattle they would pay the stipulated price for the time-they permitted them to remain in the pasture.

The agreement seems to have been carried out in all respects, except that when defendants withdrew the cattle they failed to pay for their pasturage.

The jury returned a verdict in favor of plaintiff; on which judgment was rendered, including an excess of interest. This error was called to the attention of the court during the term, and a remittitur of the excess, in interest having been filed, the j udgment was reformed and corrected.

We find no error in the proceedings, and the judgment is affirmed.

Affirmed.

Delivered January 17, 1890.

Chief Justice Stayton not sitting.