No. 6725. | Tex. App. | Feb 13, 1924
Appellant sued appellee in the county court of Bexar county for a balance of $222.16 due it under a written contract to treat his wife for insanity, and for $16.79 spent by it for laundry and $2.25 for medicine for her use and benefit while she was a patient in such sanitarium. The case was transferred to Concho county upon a plea of privilege, and, the corporation having been dissolved meantime, Dr. Thomas Dorbandt, sole owner, was substituted as plaintiff. The contract provided for payment by Dickens of $100 for the first four weeks and $45 Per week thereafter so long as Mrs. Dickens remained in the sanitarium. *1111 She was there, excepting four days, from November 2, 1920, to March 3, 1921. On February 20, 1923, Dickens filed his answer, and pleaded breach of contract by appellant, in that Dr. Dorbandt agreed at the time he put his wife in the sanitarium that he would advise him at the end of four weeks whether he could cure or improve her mental condition, and that, if he could not, then that Dickens could remove her from the sanitarium and put her in an insane asylum; that Dr. Dorbandt, well knowing at the end of four weeks that he could not improve her mind, induced appellee to keep his wife in said sanitarium until March 3, 1921, without any improvement whatever; and that appellee therefore owed him nothing under the contract sued upon.
In addition to such defense to the written contract, appellee pleaded, in a cross-action, this same oral contract as a separate and distinct contract from the written contract signed by him. In such cross-action he set up as damages flowing from its breach his expenses in making three trips from his home in Concho county to San Antonio to see his wife, his loss of time in doing so, and his additional expenses for board while staying in San Antonio. The jury, on special issues, found that appellee owed appellant on the written contract a balance of $222 16, found against appellant on the items for laundry and medicine, and awarded appellee on his cross-action damages in the sum of $160. On these findings the court rendered judgment for appellant for $62.16, from which judgment this appeal was perfected.
Appellant predicates error under three assignments:
First. That the court erred in submitting appellee's cross-action to the jury because (a) it was barred by the two-year statute of limitation; (b) because such cross-action should not be allowed under the law to offset a claim based upon a written contract; and (c) because appellee's damages, if any, were too remote and not in contemplation of the parties at the time.
Second. In the refusal of the jury to allow appellant judgment for the expense items for laundry and medicine incurred by it for the benefit of Mrs. Dickens.
Third. In rendering judgment for appellee for $160 on his cross-action.
There is no merit in the issue of limitation raised by appellant. Nor do we think the cross-action was improper under the statute. Article 1330, Revised Statutes, provides for such cross-action when same grows out of the same transaction on which plaintiff sued, as was clearly the case in this suit.
Plaintiff sued upon a written contract, which provided for payment of $100 fee for treatment of the patient and $45 per week after the expiration of four weeks. Nowhere in said contract is either board, laundry, or medicine mentioned. These expenses were incidental to and necessary to the retention and continued treatment of the patient in the sanitarium. The jury had the contract before them, and evidently found that these items were to be paid by appellant out of the sums charged appellee for treatment. Having reduced his contract with appellee to writing, appellant should have specified what additional expenses of the patient, if any, should be charged against the appellee. Failing to do so, the jury was authorized to construe the contract most favorably to appellee. Brown v. Ins. Co.,
The trial court erred in rendering judgment for appellee on his cross-action. A party to a suit cannot recover by a cross-action unless such recovery could be had in an original suit thereon. In the instant case the contract asserted by appellee was oral. It was positively denied by Dorbandt, who was alleged to have made it. We have read carefully the agreed statement of facts, and the following is the only testimony we find as to such an agreement. W. R. Dickens, Sr., testified:
"That when he placed his wife in the Lakeside Sanitarium he had a talk with Dr. Dorbandt; that Dr. Dorbandt told him he thought he could tell him at the end of four weeks whether his wife should be further treated in the hospital or whether he should take her to the insane asylum."
Taken in its most favorable light, we do not think this could be considered as a contract on which a cause of action could be based. It appears rather to be merely an expression of an opinion.
But if such be treated as a contract, and if breached by appellant, we think the damages claimed are too remote to be recoverable. The rule in such cases is that the measure of damages for breach of a contract is either such damages as arise naturally — that is, in the usual course of things — from the breach, or such as may reasonably have been in contemplation of the parties at the time as the probable result of the breach. Telephone Co. v. Solomon,
The judgment of the trial court in favor of appellant and against appellee for the sum of $222.16 is affirmed. The judgment of the trial court in favor of appellee on his cross-action against appellant for the sum of $160 is hereby reversed, and judgment here rendered that appellee take nothing against appellant in such cross-action, and that he pay all costs except such as were incurred prior to the transfer of said cause from Bexar county, Tex., to Concho county, Tex.; and it is so ordered.
Affirmed in part and in part reversed and rendered.