290 S.W. 802 | Tex. App. | 1927
Appellee E. B. Bevering sued appellants Spaeth Co. for damages for breach of contract. Appellee owned or controlled an opera house in Mexia, Tex. Appellants were proprietors of a minstrel road show. They entered into a written contract with appellee to give a performance of said show in his opera house. Said contract provided that appellants should receive three-fourths of the receipts from the sale of tickets for said performance, and that appellee should receive one-fourth of the proceeds of said sale. It further provided that appellants should pay the sum of $16.50 toward advertising said performance in local papers. Appellants breached said contract, and appellee sued for lost profits, and also for expenses incurred by him in advertising and preparing for said performance. There was a trial before the court and judgment in favor of appellee for $403.75. After appellants had perfected this appeal, appellee filed in the trial court a proper instrument remitting $105.38 of the judgment so recovered. A copy of said instrument has been made a part of the transcript in this court with the consent of appellants.
The generally accepted rule for the measurement of damages suffered by reason of the breach of a contract is to allow such damages only as naturally resulted from the breach of such contract, or as may be fairly considered to have been within the contemplation of the parties at the time the same was made. T. P. Ry. Co. v. Nicholson,
However, before a custom can be treated as entering into and forming a part of a contract and affecting the rights of the parties thereto, such custom must be pleaded. Patton v. T. P. Ry. Co. (Tex.Civ.App.)
The judgment of the trial court is reformed by eliminating therefrom the sum of $105.38 specified in appellee's remittitur, and by further eliminating therefrom the sum of $25 so recovered for supposed loss of profits on the sale of general admission or standing room tickets, leaving a recovery in favor of appellee against appellants for the sum of $273.37, with interest from the 8th day of February, 1926, and costs incurred in that court, and said judgment, as so reformed, is here affirmed.