No. 2527 | Tex. | Feb 17, 1888
This case was before this court upon a former appeal, and is reported in 63 Tex., 381" court="Tex." date_filed="1885-02-24" href="https://app.midpage.ai/document/houston--t-c-ry-co-v-hill-4894682?utm_source=webapp" opinion_id="4894682">63 Texas, 381. The nature of the controversy is shown by the opinion there reported.
It appears from the testimony adduced on the last trial, that after appellee had made his contract with appellant’s agent for
It was also proved that the defendant, after its repudiation of the contract made by plaintiff with its ticket agent Gray, through its general manager proposed to issue tickets for fifteen persons at the price fixed in the original agreement. In view of this evidence defendant, by counsel, asked that this instruction be given to the jury: “If the jury believe from the -evidence that the defendant, the Houston & Texas Central Railway Company, proposed and offered to transport and carry fifteen persons for plaintiff, from Galveston to Dallas and return, for the sum of five dollars each, then plaintiff can not re-1 cover for the difference between five dollars and the regular-fare on fifteen persons from Galveston to Dallas and return.”
This was also refused, and the refusal is assigned as error;. Plaintiff testified that the number of tickets he -was to receive! was not limited in the contract, and all the evidence shows that;
The third assignment of error is as follows: “Because the. court erred in permitting the witness bTewson to state conversations had with persons in Galveston in regard to the excursion to Dallas.” The testimony objected to was that at least ¡twenty persons told the witness they intended to go to Dallas with plaintiff’s excursion.
It may be seriously doubted whether or not the testimony , was admissible. It is well settled that the declarations of persons as to their purpose in setting out on a journey or in chang;ing their place of abode, when accompanying the acts done are ¡competent to prove their intention. (Baptiste v. Volubrun et. al., 5 Har. & J., 86; Gorham v. Canton, 5 Greenl., 266.) But in ,-this case, if practicable to call the persons who made the declaration (which may be doubted) it would seem their own testimony would have been the better evidence of their intention to go on the excursion. It appears, however, that plaintiff himself, without objection, testified to the effect that as many as three hundred persons declared to him their intention of going on the journey. Another witness swore that “a great many” expressed, a like intention to him, and this was not objected to. Still another testified to the same effect, and to his testimony no bill of exceptions was reserved. Admitting, then, that the testimony, the admission of which is assigned as error, was illegal, can we say that it in any manner affected the verdict? We think not. The effect of all this evidence was merely to show that a large but indefinite number of persons had intended to join the excursion, and hence to buy the plaintiff’s (.tickets. This was amply proved so far as such testimony could prove it by the evidence which was not objected to, so that we ;may say with reasonable assurance that if the objection had . been sustained the verdict would not have been different. In
It is complained in the fourth assignment that the court erred in permitting Levy to testify that he purchased tickets from plaintiff. But it is certainly true that if plaintiff made a contract of sale with Levy, by which the latter agreed to take five hundred tickets at one dollar and fifty cents more per ticket than plaintiff was to pay for them, the latter was entitled to recover this profit, less the expense he would have incurred in executing his enterprise. The evidence was clearly admissible.
Fifth assignment of error is as follows: “Because the court erred in charging the jury that plaintiff was entitled to the profits on all tickets plaintiff would have sold.” To show that this assignment is not well taken, we need only quote so much of the charge as relates to the measure of damages and the proof required in order to establish the amount: “In case your verdict be for plaintiff for damages, then the measure of damages would be the difference between the amount the plaintiff was to pay the company for each excursionist that would have gone up from Galveston to Dallas * * * with plaintiff’s proposed excursion party, and the amount that Hill proposed to take them for, after deducting, however, from such profits the expense that Hill incurred, and the further expenses that Hill would have incurred, in getting up the excursion—that is to say, the net profits that Hill would have made, and which he lost by reason of defendant’s breach of contract. And in order to determine with reasonable certainty the number .of excursionists that Hill would have obtained for the proposed excursion * * * you must look to the evidence, and, as in cases of this character there can be nothing like absolute certainty in ascertaining the number of excursionists that would have gone up on said day from Galveston and Houston under Hill’s auspices, you must not be guided by mere suppositions and possibilities, but must look to and determine from the evidence with reasonable certainty the number that would have gone up from said places as excursionists of Hill.” Such is the portion of the charge complained of. It will be seen that it restricts plaintiff’s recovery to the amount of net profit that he would have realized on the number, of tickets the evidence satisfies the jury with reasonable certainty
It seems to us that the jury did not follow the rule laid down by the court, and have awarded speculative damages. The verdict seems to us excessive. But there is no assignment of error upon this ground, and we can not reverse the judgment upon this account. The assignments of error presented in the brief are not well taken, and therefore the judgment will be affirmed.
Affirmed