14 Tex. 260 | Tex. | 1855
To have constituted the plea of a former judgment effectual as a bar, to a recovery in this case, it must have appeared, that the former judgment pleaded was a judgment upon the merits. (Foster v. Wells, 4 Tex. R. 101; 10 Pet. R. 298.) We think it sufficiently appears upon the face of the proceedings before the Justice, that the judgment was not rendered upon the merits. But it is sufficient to dispose of this ground of defence to the action, that it does not affirmatively appear, that the judgment was rendered upon a trial upon the merits. It was unnecessary for the plaintiff to resort to evidence aliunde, to prove that the judgment was not so rendered. But if it had been necessary, the testimony of the Justice, who tried the case, was admissible for that purpose.
■ The objection that the suit was prematurely brought, we do not think maintainable. If the contract were entire, and incapable of apportionment; or if the plaintiff had brought his suit to recover upon the contract, the compensation which would have been due him for his services for the year, the institution of suit before the expiration of the year, would have been premature. But it has been decided by this Court, that such contracts as the present are not of that character; that tender of performance is not equivalent to performance in such cases, for the purpose of fixing the measure of damages ; and that the true measure is, in general, the damage which the plaintiff has sustained by the breach of the contract. (Meade v. Rutledge, 11 Tex. R. 44.) From this doctrine it results that a right of action accrues immediately upon the breach of the contract, for such damages as have accrued from the breach. This suit was for damages generally for the breach of the contract.
There was no error in admitting evidence of the value of the contract. It was proper and necessary to ascertain its value, in order to estimate -the damages occasioned by the breach of it. It is objected that the petition does not allege the damages sought, with sufficient specialty. This might have been a good ground of exception to the petition ; but was not a ground for rejecting the evidence, proposed to prove the damages, claimed by the plaintiff in his petition.
The evidence proposed by the defendant, which the Oourt excluded, was clearly inadmissible under the pleadings. It did not conduce in any degree, to support the defence set up in the answer, or to establish the truth of the matter pleaded as a justification of the defendant’s act, in dismissing the plaintiff from Ms employment. It was calculated to surprise the plaintiff, by the introduction of matter of a character to prejudice the jury against him ; and which he could not be supposed to be prepared to explain; but which, if he had been apprised the
We think the verdict well warranted by the evidence; and we see no reason to apprehend that any wrong or injustice has been done the defendant. The justice of the case appears to have been attained. And we see no error in the rulings of the Court, which has operated to the injury of the defendant; or which can be assigned by him as a ground for reversing the judgment. It is therefore affirmed.
Judgment affirmed.