Fowler v. Waller, 25 Tex. 695

Fowler v. Waller

25 Tex. 695 | Tex. | 1860

Bell, J.

The charge of the court was correct in, its terms, though it did not embrace the whole law of the case.. We have frequently decided, however, that where there is no error in the charge, as given, this court will not reverse the judgment, because the instruction to the jury was not sufficiently comprehensive. In such case, it' is the duty of the party, who is- dissatisfied with the charge, to ask for a further instruction to supply the deficiency in the general instruction. It would have been proper for the court to have instructed the jury that the plaintiff below could not, in any event, recover beyond the amount to which he woulddiave been entitled had the contract been fulfilled. This rule applies as well to a case like the present, where the overseer is to receive a portion of the crop for his remuneration, as to those cases in which the parties agree upon a sum of money as the price of the overseer’s services. In this case if the overseer was discharged without sufficient cause, he was entitled to recover for the four months during which he served the appellant in the capacity of overseer, and also to recover such damages as he suffered in consequence of being improperly turned out of employment. In estimating such damages, however, it is error to adopt the amount to which he would have been entitled had the contract been fulfilled as the damage which the overseer has suffered. Because to do this, and also to- allow him compensation according to the contract price (which is the true rule) for the time which he actually served, is at once to violate the fundamental rule which does not permit him to recover more than he would have been entitled to receive if the contract had been fulfilled. If wrongfully discharged, the overseer can recover for his actual services, according to the contract price, *702and such damages as he proves he has' sustained by being wrongfully discharged, the whole not to exceed what he would have received if he had remained and performed his contract. Tested by this rule, the verdict in this case is not supported by the evidence. There is no proof whatever, that the appellee did not obtain employment after he was discharged. There is no proof that he sought employment and could not find it after reasonable efforts to do so. There is no proof that he paid anything for a house to live in during the remainder'óf the year, after he was discharged. 0The only proof is, that he was to receive one-twentieth part of the crop for his services; that he served from the 16th of April until the 6th of August, when he was discharged; and the proof as to the amount and value of the crop, made by the appellant. The construction of the evidence most favorable to the appellee will not sustain the verdict. It is shown that the appellant made eight hundred bushels of corn, which is shown to have been worth from $1 25 to f 1 50 per bushel. At the highest price, one-twentieth of the value of this corn would be sixty dollars. . The appellee served the appellant less than four months, but for facility of calculation we will say that he served four months. The time for which he contracted to serve was eight months and a half. For the four months service, he would then be entitled to less than half of the twentieth part of the value of the corn; say in round numbers, thirty dollars. Let us then assume, according to an allegation in the answer of the defendant, that there were forty-five bales of cotton made; and that they averaged four hundred and fifty pounds in weight, and that cotton was worth ten cents per pound. Forty-five bales of cotton, weighing four hundred and fifty pounds each, would make twenty thousand, two hundred and fifty pounds; which, at ten cents per pound, would be worth two thousand and twenty-five dollars. One-twentieth part of two thousand and twenty-five dollars, would be a small fraction over one hundred and one dollars ; and the half of this again would be fifty dollars and fifty cents. The expression “ several hundred bushels of wheat,” is too general for a basis on which to compute damages; but if we could assume that there were three hundred bushels of wheat made; and if we could infer that it was worth *703f 1 25 per bushel, from the fa'ct that the appellant sold some to the appellee which he proved to be of that value, we would then have three hundred bushels of wheat worth three hundred and seventy-five dollars. One-twentieth part of three hundred and seventy-five dollars, is eighteen dollars and seventy-five cents, and one-half of this again is nine dollars and thirty-seven and a half cents. We have then on account of corn, thirty dollars; on account of cotton, fifty dollars and fifty cents; and on account of wheat, nine dollars and thirty-seven and a half cents, making a total of eighty-nine dollars and eighty-seven and a half cents. This is a more liberal estimate than is warranted by the evidence of what the plaintiff below was entitled to recover for the time that he actually served the appellant as overseer. The appellant also proved a small account in set-off against the demands of the plaintiff below. Of other evidence of damage sustained by the appellee, there is none. The verdict was therefore unsupported by the evidence, and the court erred in overruling the motion of the appellant for a new trial on that ground. On another trial, the appellee may possibly be able to support his ease by evidence, better than he did before. The judgment is reversed, and the cause remanded for further proceedings.

Reversed and remanded.