229 S.W. 636 | Tex. App. | 1921
In 1907 the appellants sold to the appellee their cotton gin plant in the town of Malakoff. The consideration expressed in the written contract was $4,000. The property conveyed was "our gin house and machinery, consisting of a complete gin and mill outfit, together with the building in which same is situated." The purchasers were also given the right to operate the gin and mill on the lot belonging to the vendors for 12 months after the sale. The contract contained this additional stipulation:
"And as a further inducement to said gin company, we, and each of us, do hereby covenant and agree with said gin company that during the time that they operate said gin or mill in the community in which Malakoff is situated that we will not directly or indirectly engage in or be interested in any other gin or mill in said community."
Some months thereafter the appellants, in violation of that agreement, established and began the operation of another cotton gin plant in Malakoff. In 1909 the appellee brought a suit for damages for the breach of that contract. By amendment before trial an injunction was sought restraining the appellants from continuing to operate their gin. That case was not tried until some time in 1912, and the damages sought were for the profits lost up to February of that year In that trial the jury awarded the Malakoff Gin Company only $10 as damages, and the court refused the application for the injunction. On a final appeal the Supreme Court held that the writ should have been granted. A full report of the facts and the opinion rendered will be found in
In April, 1917, the Court of Civil Appeals, in accordance with the opinion of the Supreme Court, reversed the ruling of the district court and rendered a judgment granting the writ of injunction. Malakoff Gin Co. v. Riddlesperger et al.,
Among other defenses, the defendants pleaded the statute of limitation of four years, and the former judgment. In a trial before the court the plaintiff recovered a judgment for $1,800 as damages accruing during the four years immediately preceding the filing of this suit.
Practically the only question involved in this appeal is: Did the initial breach of the contract in 1907, or 1908, create one entire cause of action for all the damages which had then and might thereafter result from an infraction of the contract? In other words, was the appellee required to then treat the contract as at an end and to claim in one suit compensation for the loss of all the benefits which it acquired by the making of the contract? As justifying an affirmative answer to those questions, the appellants contend that the contract was entire and indivisible and for that reason its breach could not be made the basis of successive claims for damages. In support of that proposition they have cited the case of Davis v. Brown, decided by the Kentucky Court of Appeals and reported in
The rule which should control controversies of this character is more analogous to that which regulates recoveries for injuries resulting from the maintenance of an abateable, or transitory, private nuisance. Under the rule recognized in this state, damages in such cases may be recovered as they accrue, unless the nuisance is a permanent one where all the injury probable may be considered as having been inflicted at the beginning of the offense. Parsons v. Uvalde Electric Light Co.,
A contract to refrain during a designated period of time from doing something which may be divided into separate and distinct acts is, in many respects, similar to one which binds the promisor to do something during a fixed period which may be performed at different times by separate and distinct acts. Our courts hold that contracts of the latter kind are not entire in the sense that only one action can be maintained for a breach. Howe v. Harding,
Let us suppose that the appellants had, in violation of their contract, operated their gin for one season and then sold it, or for some other reason had discontinued the business. Such conduct would undoubtedly give rise to a cause of action in favor of the appellee, but the damages recoverable would be limited to the loss which it had sustained during that wrongful operation. Prospective damages could not, under such circumstances, be claimed, because no presumption would be indulged that the offense, which had ceased, would be repeated. Unless it was repeated no further damages could accrue. But suppose that more than four years afterward the appellants should again begin the operation of another rival plant in that community: Can it be said that the appellee would then be barred from bringing another suit for the damages resulting from the second offense? We think not.
By this contract the appellant had not only parted with their gin plant, but also conveyed their good will. While good will was not mentioned in the contract, the character of the transaction was such as to pass it by implication. Didlake v. Roden,
When untrammeled by legislation there is no reason why courts of justice should voluntarily manacle themselves with artificial rules which tend to defeat the very purpose for which they are created. In each controversy of this character that course should be adopted which may, without overturning some other established principle, best meet the ends of justice. That rule for ascertaining and awarding damages should be followed which best enables the court to allow the injured party all the damages he has sustained, without penalizing the offender by awarding more.
Appellants also insist that because a writ of injunction was prayed for and granted in the former suit no damages could be recovered for the period covered by this suit. While the writ of injunction was prayed for in the original case, it was not issued till in 1917, five years after the trial. It was not the fault of the appellee that it was not granted sooner. During that entire time pending the appeal the appellants continued the violation of their contract, to the damage of the appellee, and the latter was powerless to prevent it. The writ of injunction is no substitute for actual damages that have been inflicted as a result of misconduct occurring before the writ is issued.
*639The judgment is affirmed.