Moore v. Anderson, 30 Tex. 224

Moore v. Anderson

30 Tex. 224 | Tex. | 1867

Coke, J.

The assignments of error present two questions for revision here:

1. The ruling of the court below, excluding the deposition of the witness Allen, offered by the plaintiff in error.

2. The sufficiency of the evidence to support the verdict.

Whether there was error in the exclusion of the testimony of the witness Allen or not we think is immaterial. This testimony was merely cumulative. The witness White proved satisfactorily the only fact that would have been established by Allen’s testimony if admitted, to wit, that the certificates had been located in Denton county, at some time previous to September, 1856, and there was no testimony contradicting it. Eo injury could have resulted to the plaintiff in error from its exclusion.

With regard to the other question, we are of opinion that the testimony was insufficient to support the verdict, and for this reason that the court erred in overruling the motion for new trial.

This action is brought to recover damages for the alleged breach by defendant below of the contract to locate the *229land certificates described in the agreement by the 12th June, 1855. Two grounds of recovery are relied on in the petition: one is, that the “penal sum of $300, in which Moore bound himself in the performance of the contract on his part, was liquidated damages, agreed on by the parties as the amount to be paid by Moore in tbe event of his failure to perform; and the other is for special damages, alleged to have resulted from said failure. The first ground seems not to have been pressed. There was no evidence extrinsic of the writing itself introduced explanatory of the written contract, or tending to show that the amount named was intended by the parties as fixing the amount of damages in the event of a breach, nor do the terms of the instrument admit of such a construction; but, on the contrary, indicate plainly enough that the amount was fixed as a penalty.

In 2 Greenleaf on Evidence, section 257, it is said: “But whether the sum stipulated to be paid upon breach of the agreement is to be taken as liquidated damages, or only as a penalty, will depend upon the intent of the parties, to be ascertained by a just interpretation of the contract; and here it is to be observed, that the policy of the law does not regard penalties or forfeitures with favor, and equity will relieve against them. And therefore because, by treating the sum as a mere penalty, the case is open to relief in equity, according to the actual damages, the sum will generally be so considered, and the burden of proof will be on him who claims it as liquidated damages to show that it was intended as such by the parties.” The court below construed the sum named in the contract to be a penalty intended to secure the amount of damages actually sustained, and, we think, properly.

Damages are given as a compensation or satisfaction for an injury actually received. They should be commensurate with the injury, neither more nor less. (2 Greenl. on Ev., § 253.)

*230Such damages as necessarily result from the injury are known as general damages, and may he recovered on a general allegation of damage. But when the damages are the natural consequences, but not the necessary result, of the act complained of, they are termed special damages, which the law does not imply, and must be specially alleged, in order to lay a basis for proof and a recovery. Some damages are always presumed to follow the violation of any right or duty, and therefore the party injured is entitled to nominal damages, if none greater are proved. (Hope v. Alley, 9 Tex., 395; Neill v. Newton, 23 Tex., 202; 1 Greenl. on Ev., § 254.)

A basis for the proof and recovery of special damages was sought to be laid in the petition, by alleging that between the date of the contract and the 12th June, 1855, there was a large amount of good average vacant land subject to location in the State of Texas; that the same was then being rapidly located upon; and that, by the 12th June, 1855, nearly all the land of that character had been located, and that since that time it had become impossible to get as good locations as could then have been obtained, and that, by reason of defendant’s failure to locate the certificates within the agreed time, plaintiff" is damaged, &c. If it were admitted that these allegations do, in the absence of special exceptions, lay a sufficient predicate for the proof and recovery of special damages, they were not sustained on the trial by proof. The substance of the testimony on this subject is, that there was more vacant land in Panola and adjoining counties in 1854 and 1855 than at the date of the trial, and that a good many locations had been made in those counties since 1854. This might well be true, and an abundance of good average vacant land might still be there to locate the certificates on, supposing they had not been located at the time of trial. The testimony was confined to Panola and adjoining counties, whereas the defendant was authorized, by the terms of the contract, to locate *231the certificates anywhere in the limits of the state where he could find the character of land named. There is not a particle of proof in the record which negatives the conclusion that as good locations could have been made even in Panola and adjoining counties, at the date of the trial, as could have been made in 1854, and, consequently, no damage is shown to have resulted from a failure to locate by June, 1855. But it is clearly proved that these certificates had been located in Denton county, and, together with the field-notes, had been returned to the general land office previous to September, 1856, and that the patents had not been issued, simply because the commissioner of claims had refused to approve and register the certificates without further proof of their genuineness. This is shown to have been within the knowledge of the plaintiff before he instituted this suit. If his certificates are genuine, the file and survey appropriate the land. If it is good average land, he has all that he contracted for; he has sustained no actual damage. If it is not good average land, upon proper allegation and proof the plaintiff could have recovered, as special damage, a sufficient amount to compensate for the deficiency in quality. This is the measure of damage to which, in the absence of fraud, imposition, or deception, on part of defendant, the plaintiff' was entitled;

Ho actual injury having been proved to have resulted to the plaintiff from the breach of the contract, as to the time within which the locations should have been made, he was entitled to recover only nominal damages in this action. The judgment must, therefore, be reversed. The death of the plaintiff in error, Moore, having been suggested, the suit, on motion of defendant in error, has been abated as to him, and an affirmance of the judgment asked against the sureties on the writ of error bond. A reversal of the judgment discharges these sureties, and thus terminates the existence of the suit. If it were otherwise, the case would *232be remanded for further proceedings. As it is, we have no other alternative than to reverse and dismiss.

Judgment reversed, and cause

Dismissed.