King v. Bremond

25 Tex. 637 | Tex. | 1860

Bell, J.

We think it unnecessary in this case to discuss the question whether or not the plaintiffs in the court below were entitled to maintain them suit on the contract of the 20th of July, 1852, for the failure on the part of King to deliver the leather. The plaintiffs were clearly entitled, upon King’s failure to deliver the leather, to bring their suit to recover the amount which King acknowledged himself to be indebted to them. We think the amended petition filed by the plaintiffs at the Fall Term, 1854, is sufficient to entitle them to recover judgment for the money due them. That petition, alleged the failure of King to pay the money, and prayed for such damages as the plaintiffs had sustained by his failure to pay said sum of money.

It is obvious that the jury arrived at the conclusion expressed in their verdict by estimating the twenty-five thousand pounds of leather at the highest price placed on it in the testimony, which was forty-five cents per pound; and by deducting the value of the 2117 pounds of leather which King had delivered. The verdict of the jury was for $10,297 35. Of this sum the plaintiffs remitted $1,797 35, thus reducing the amount recovered to $8500. The amount due the plaintiffs on the day on which the judgment was rendered, calculating interest at eight per centum, and deducting the value of the 2117 pounds of leather delivered by King, was about $8751. So that the remittitur entered by the plaintiffs reduced the amount which they recovered to a sum less than the sum due them by King by about $250.

In the view that we have taken of the case it does not become necessary to consider whether or not the value of the leather could be proved without any allegation of value in the petition of the plaintiffs. It may be remarked, however, that the defendant made no objection to the evidence to show the value of the leather, so far as we can ascertain from the record. It is true that the jury found their verdict for the value of the leather, but they might properly have found a verdict --for the money due by ^defendant to the plaintiffs; and as the plaintiffs have remitted so much of the amount recovered as exceeds the amount which they might properly have recovered upon the pleadings and evidence, we think the justice of the case has been attained without any violation of law; wherefore the judgment of the court below is affirmed; and it is ordered that the defendants in error recover of the plaintiff in error the amount of the judgment in the court below less the amount remitted.

Judgment affirmed,