*1 SCOTT LOTT (247 !.W.) аny weight judge to be attached tbe of tbe to modification of been the contract. excluding them evidence. His act in fails to this assent. to from consideration that, show evidence granted, shows reason motion will opinion, was not ment reversed the evidence in remanded. worthy tes- The defendant of consideration. signed territory designation of tified that by price lists he received him and of form from time to were instruments, and did not contain the * these (Nо. 6795.) SCOTT al. v. et LOTT. plaintiff’s provisions referred to. The above (Court Appeals An- Civil of Texas. San depositions secretary, these exhib- whose to tonio. Nov. 1922. On Motion for Rehear- attached, other as several as well its officers of the ing Nov. Motion 1922. On Second company, plaintiff testified Rehearing 31, 1923.) Jan. objection, freely fully, that without by require plaintiff defendant, Compromise <®=>l5(2) 1. and settlement —Reli- books, letters, guide contained structions contracts, ance on after commencement goods pur- otherwise, or sell by suit held abandonment de- defendant territory any designated or chased within fenses counterclaims. particular prices, any parties compro- and that defendant Where the entered into expressly commenced, after mise the suit had been times informed de- Lemon was at all fendant, relying solely compromise, on such himself, and he that business abandoned his various defensеs and counter- goods purchased the com- sell co.uld recovery sought. claims on which was first wherever, whom, pany whenever, pleased. price cir- Judgment Under the Conformity whatever cumstances, he 2. <§=248 — no been would have essential. the exhibits testimony just provisions men- Under the direct of Rev. than the more conclusive 1911, the art. must conform admission we think that tioned. So pleadings. the evidence the' trial court would not probably changed con- of his result Compromise <§=20(2)— 3. and settlement Plain- clusion. tiff couid elect between enforcement of execu- opinion, therefore, that tory are contract of or to be remitted original should be affirmed. cause of action. executory On breach of contract to com- promise, On Motion for made after of to commencement suit, plaintiff had the elect either [4] We were mistaken statement such contract enforce or to be to his remitted opinion made in tes the defendant pleaded. cause of action tified acted on the sent that he instructions Compromise <S=»6(I) 4. and settlement plaintiff —Mu- after parties tual efforts settle differences January renewal contract 1919. carries valuable consideration. testify great length defendant does as to litigation The mutual efforts of to a receipt instructions, price lists, such to settle their them a differences etc., testimony impression and his leaves the consideration, valuable be governed by instructions; he these upheld to do so. carefully but we have read his entire testi damages ©=59(3) Measure Fraud mony, say and find stated. followed these instructions acted under damages rep- The measure of for fraudulent provided them. The itself contract such inducing making resentations tract of.a land con- letters, bulletins, and na literature ordinarily the difference in the value plaintiff ture sent and received price' agreed upon the land at the by ter, modify, change, the defendant should not “al wise real the contract is made .of representation or affect this land itself when the inducing was made only purchase. and shall considered as educational advisory.” While under the authorities purchaser <§=349 6. Vendor and —Measure provision give above cited this does not damages supporting and evidence it nеed not conclusive effect the character of such sub in suit for refusal con- sequent yet transactions, not be would tract. indulging warranted the inference wrongfully per- aWhen vendor refused to writing receipt contract, mere letters and form his the substance it is sufficient broach, contract defendant in itself a constituted them general terms, suffered rea- of the contract. modification The the terms necessary son and it is not legal. itself burden of рlead specially or the proof show such defendant support it, evidence for the correct meas- understanding thereof secret modification is matter ure of law under the al- subsequent modification as rendered it il legations contract, breach and the necessary legal. defendants’ assent was resultant Digests cases see same KEY-NUIvIBER in all Key-Numbered
©=For
February
for want of
*Writ of error dismissed
Jurisdiction
*2
REPORTER
SOUTHWESTERN
land;
county
B. L.
for
from
Lombard
On Motion
Beе
signed by appellee,
for
the two
one
and
but
involved
merit
n signments
execution
(cid:127)damages
right
(cid:127)of the
consider
Welder
enforcement,
by
damages
appellee
basis.
represented
way,
damages
dentally
on,
admits.
(cid:127)rights
settlement
due
which,
when
placed
with
formance
created that
ments,
ed
ness
ages
sion of the
of counterclaim and relied
which
sought
compromise
osition
compromise,
trust,
Appellants challenge, in
relying
рerform,
in fact abandoned
Avenue
compromise..
as matter
thereon
the
show
propositions
part
he sustained
but
cross-action
(Bee county)
on,
to
he
in
he
securing
to seek
himself
upon
Ascertaining
prior
notes;
raised on
specific performance
alleged
recover on
are
Appellee alleged,
to offset
good
the
admitted the
willingness
in no
of the first
had
which left the
caused
and in
the
contract until
upon
to
O
fact
the land stood
December
case,
amounted’
failure
which was
sum,
and in the
which he
sufficiently
very
was reduced to
compromise,
same,
or,
lien
separate
not called
declined
appellee'to
against
delivery
motion. We
stands
filing
*3
propositions.
in a
way
(b) because,
erroneous
to exceed
in
are
He
he
agreement.
does not
except
compromise by conveying
time he
the first
performance
though
tne
аfterwards that the debt contract in
position
this cross-action
point
alternative
notes,'
affected the
abandoned
course,
electing
prayed
reason of their failure
not
upon
execution and
items of
covered
to about
to be
for value
amount he
alleged
wholly executory
perform
thereon due
general
obligations
his cross-action
raised.
alternative,
upon
cross-action
appellants
in the most
thе amount
alternative
execute,
the
breach,
very
averred his readi-
charged with,
recover:
sought
questions
their first
1920, appellants
provided
the
definitely
the
conveyed
shall, however,
on the submis-
where
which
There
to
appellee
substance,
In
to
made on that
admitted the
third
demurrer.
satisfactory,
the terms of
assignments
all
specific per-
enforce the
On account
the deed of
go
appellants’
relief had
regard
and inci-
owеd for
the dam-
with
sued
he
defenses
is much
appellee
delivery
further
general
(a)
exceed-
lawof
alleged laudable
alleged
assign-
to
terms,
there-
point,
(c)
could
notes Simono
prop-
eon-
but
Be-
up-
its
he
ly
lants.
must
ment here does
form to the
the
tract
Menard v.
ted such was
from
subsequently
son of the
36 Tex.
sufficiently pleaded
so,
App.)
on
Eq.
various
cross-action,
upon
ing, either
536;
Civ.
offered to
§ 23.
for which
son v. Heidenheimer
W.
which
len,
Tex.
App.)
Civ.
L.U.
63
Spеake, Tex.
v.
v.
their
consideration,
Co.
65 L. A. 302.
ences
ways upheld
Civ.
Tex.
(Tex.
(Tex.
[1]
[2,
In this suit on the
[4] The mutual efforts of
Campbell
Jones,
compromise,
it in
Tex.
but that
Jur.
various
election,
relieving
v.
sanction
App.)
56 Tex.
App.)
App.)
3] And we
R.
conform to the
differences
12
things,
33-35;
relying
the breach of
225 S. W.
176
&
Markowitz,
Civ.
Civ.
authorities
recovery
139; Ferguson
5 R. C. L.
23
(Tex.
(2d Ed.) 2227,2228;
Irrigation
excess of
grounds formerly pleaded,
374;
Corpus
agree
16 Tex.
still
alleged
S.
153
appellee
197 S.
action of
App.)
carry
Apр.)
Sydnor,
defenses
pleadings,
cause
of the alternative for
133;
(Tex.
the land
but that
to
appellants
made,
W.
court,
Davenport
enforce
them to
Civ.
executory.
upon
stands
S. W.
Greenwall
S. W.
with
agree
he had
substantially,
843;
429;
most
§§
carry
784;
202 S. W.
out and
Juris, pp.
compromise,
cited
97 Tex.
461; Blythe
.approval
Camoron v.
p.
App.)
Civ.
Co. v.
certainly