*1
Tes.)
1001
J.
CASWELL v.
S. MoCALL & SONS
jurisdiction
Ablowich time the
of
court.
same was
over the
the
the
to be delivered
below
432,
79,
price.
gen-
Bank,
Appellees interposed
67 W.
881.
contract
95 Tex.
S.
a
v.
appellant’s
stated,
motion
demurrer, general denial,
special
reasons
For the
eral
swer,
and
an-
rehearing
allegations
is
for
overruled.
a
the
not
of which need
be
Motion overruled.
being overruled,
stated. The demurrer
and
jury being
a
waived,
case
the
was tried be-
court,
judgment
ap-
fore the
who
for
rendered
pellees,
appeal
prosecuted.
from which this
is
S.
&
J. McCALL SONS.
CASWELL v.
appellant
[1] When
offered to show the
price
Appeals
(Court
purchased
Austin.
of Texas.
of cotton
of Civil
of
character
at
the
3,
for Rehear-
Motion
Dec.
1913. On
Elgin
September
objection
20th,
on
was made
1914.)
ing,
11,
Feb.
allegation
petition
that
there was no
in the
Damages.
Dasiagbs
12*)
(§
1.
—Nominal
that would
the
of
authorize
introduction
this
contract,
Where,
of
in
action for breach
an
testimony.
objection
sustained,
The
was
plaintiff
breach,
en
was
a
evidence showed
the
titled
whereupon appellant
pe
damages, notwith
to
the
moved
amend
to
nominal
i:eeover
damages.
standing
of
no
was
evidence
there
respect;
tition in this
but the motion was
Damages,
cases, see
other
[Ed. Note.—For
overruled,
assigned
and error is
the action
on
Dig.
Dig.
31;
12.*]
Dec.
§
§
Cent.
permit
refusing
of the court in
to
this amend
416*)
(§
of Contract —Ac
2. Sales
—-Breach
—
ment,
rendering judgment
as
inas
well
for
by
Proof,
Buyer
Issues,
and Vari
tion
insisting
defendant,
proper assignment
by
ance.
that, although
proof
buyer
by
Where,
for breach
the
had
to
a
failed
show
in an action
cotton,
petition
the
of
did
but
sale
for the
of
a contract
damages, was, nevertheless,
actual
he
entitled
damages,
constituting
allege
facts
not
the
damages.
to recover nominal
this
We think
damaged
only
plaintiff
in the sum
that
was
is
The
correct.
evidence shows
proper
contention
of
$500,
of
exclude evidence
it was
to
allegation
damages
damages,
a
was
breached, and,
as to
that
the
since the
contract was
not
pleader.
the
mere conclusion of
withstanding
any
there
no'
of
was
evidence
thereof, yet,
Sales,
cases,
Note.—For other
see
Cent.
[Ed.
by
actual loss shown
reason
un
Dig.
1171, 1172;
Dig.
416.*]
§
§§
Dec.
appellant
circumstances,
der such
tled to nominal
was enti
Rehearing.
damages.
Aiken,
for
On Motion
See Pierce v.
Pleading
Supplemen
950;
Ry. Co.,
146 S. W.
T. &
236*)
Davis v.
P.
91
(§
3.
—Amended
Pleadings.
tal
505,
Hope
822;
Alley,
S.
Tex.
44 W.
v.
9
in
discretion
The trial court abused its
395.
Tex.
peti-
permit plaintiff
refusing
his
to
to amend
appear
But it is not made
during
allege
to
that the court
trial
facts constitut-
tion
ing
of
to
the
damages
as to render admissible evidence
refusing
so
abused
appellant
discretion in
to allow
its
damages,
the
the court had sustained
where
petition,
to
for
file an amended
petition
demurrer.
on
which reason no error
in this re
is shown
cases,
Pleading,
Note.—For other
see
[Ed.
spect.
1911,
1824;
S.R.
art.
White v.
See
Dig.
605;
Dig.
601,
236.*]
Cent
Dec.
§§
§
App.
Bank,
487,
Provident Nat.
Tex.
27
Civ.
Appeal
Bastrop County Court;
B.
J.
from
498;
Jester,
S.
65 W.
McCormick v.
53 Tex.
Price, Judge.
App.
278; Hastings
306,
Civ.
115 S. W.
v.
against
by
S.
J.
Action
T. Caswell
W.
petition
Townsend, 136 S.
1143. The
W.
judgment
de-
for
From a
McCall & Sons.
fendant,
action,
failed to state a
of
for the
cause
rea
appeals.
plaintiff
and re-
Reversed
allege
specifically
son that
authorizing
not
it did
facts
rehearing.
on
manded
part
appel
recovery
the
of
a
on
alleged
breach,
lant.
It
a
its
appellant.
contract and
Webb, of.Elgin,
Or-
C. W.
for
plaintiff
and then
that the
was dam
gain Maynard
Maynard,
averred
all of
and
&
P. C.
aged
by
thereof,
in
sum of
the
reason
Bastrop,
appellee.
$500
for
alleging any
showing-
without
fact or facts
damage
1912,
“A
of ac
September,
how such
arose.
cause
RICE, J.
the 3d of
On
purchased
tion is
of three elements:
through
agent,
said to consist
The
plaintiff,
from
his
right by
plaintiff’s right, the violation of this
cotton,
appellees
of
to be delivered
100 bales
defendant,
legal injury
Elgin,
and the
to the
the
month
of
at
to him on
Tex., agreeing
20th
said
the
plaintiff by
such violation —and
pay
reason of
sum of
the
to
therefor
ordinarily
upon
of
a full and clear
the
per pound,
statement
cur-
based
the
cents
10%
allega
a
middling
Elgin
of
must contain
direct
price
cause
tion of
action
said
at
on
of
cotton
rent
going
every
up
fact
to make
each of
Notwithstanding appellant
him-
held
date.
Page 307,
on Plead
willing
elements.”
Townes
these
and
at
to
was able
in readiness and
self
all times to
damaged
allegation
according
ing.
is
he was
pay
The
that
for
cotton
said
pleader, and not
price, appellees
conclusion of the
the mere
and re-
failed
contract
the
Cyc. p.
13
173
contract,
a
See
et
comply
statement of
fact.
the
said
where-
to
with
fused
Cyc.,
seq.;
Cyc. p. 109,
brought
In 13
upon
31
subd. 14.
to
dam-
action was
recover
this
complaint
alleging supra,
which
petition,
“A
under
ages
it
said:
is
after
therefor. The
damage may
alleged
be re
breach,
the
that evidence of
its
averred
contract and
the
plaintiff
facts'constituting
allege
damaged by
a cause
must
thereof ceived
had
reason
been'
damages
alleging
any
action;
a mere
allege
as
con
$500, but
to
of
of
failed
in
sum
the
being
pleader
insufficient.” See
price
of the
in
of said cotton at the clusion
the
advance
Dig.
Dig.
Rep’r
Key-No. Series &
Indexes
& Am.
and section NUMBER in Dec.
topic
same
other cases see
*For
*2
163
(Tex.
SOUTHWESTERN
1002
REPORTER
94 S. W.
facts
jection
damages)
amend his
ceeding
failed to do
claim for
tained the
in
as there was
being true, the court
of
to
grounds
held that the
that the court had
was
Sewell,
trial court erred in
and
ing
contends
lant for
ing
senting
damages,
will
cretion
render
But,
testimony, and, since
tain amount
tion of such fact. We therefore hold that the
court
pleader
he would
stated.
896.
such
amount,
cotton had advanced from the time of
chase
aged
from the
proven. Thus,
the loss
142;
McKay City
625;
declare
of an
proceed
presumed necessarily
and
opposite party
the
§§
Welder v.
of
It is
Reversed
[3]
In the
action,
“Unless
controversy.
96,
contract, they
file an amendment
of
and
be reversed
remanding
money,”
circumstantially,
without
for the
in
imperfectly pleaded
difference, and,
Appellant,
Herfort v.
did not err
to the time of
Gould v.
estate,
97.
to the evidence
the
held,
with the
judgment
is
90 Tex.
for actual
any
that he had been
v.
the sum of
specially, stating
these
the enhanced
for interest and
that the court erred
rendering,
arising
On Motion for
But
nominal
not to have
facts stated
have
except
130, that,
present
the
petition
demurrer,
shown
Dunn, Willson,
amendment,
the
this,
and
was
definite amount.
nothing
in T. & P.
error of the court in
petition
it
etc. Sutton v.
jurisdiction.
judgment
the mere declaration
questions
been
damages
in an action
this
is held
rendered.
of
Allen,
and
of the
then it was error
trial
275,
in his motion for
for nominal
from not
not
We think it was
2
in
Cramer,
in
damages;
for
case it cannot be inferred 5 W.
must be stated
in
jurisdiction
damages,
Henderson
$1
for the
damaged
failing
cause,
excluding
here rendered for
instead of
where it
delivery,
refusing
involved other than the
equivalent
this
below
Caswell v. J. S. McCall Sons
163 S.W. 1001
Tex. App.1913Check TreatmentAI-generated responses must be verified and are not legal advice.