4 S.W.2d 336 | Tex. App. | 1928
Basden Carrell sued John H. Thomas to recover a balance of $474.96 due on a promissory note executed and delivered to them by him, and to foreclose a mortgage lien on certain personal property for which said note was given. Thomas answered, and alleged that the consideration for said note had failed in part; that said note was given for one Reo truck, 45 head of hogs, 171 swill or garbage cans and certain garbage contracts held at that time by said firm; that they represented to him that 96 of said cans were in service at the Baker Hotel; that they had a contract with the Baker Company, a corporation operating said hotel, to receive and remove therefrom free of charge all garbage accumulating from day to day in the operation of said hotel; that under the provisions of said contract said company agreed not to terminate the same without giving 90 days' notice of such purpose; that he purchased the property for which said note was given relying on such representations; that the said company denied that said contract contained any agreement requiring them before terminating the same to give 90 days' notice of their purpose to do so: and that after he had *338 performed his duties under the same properly and efficiently for about 2 1/2 months, it had without any notice whatever to him refused to deliver any further garbage; that said company also denied that said firm had in service at said hotel at the time of his purchase 96 garbage cans, as claimed by them, but contended that said firm had at that time in service in said hotel only 56 such cans, and that it refused to deliver the remaining 40 cans to him; that said cans were worth $4 each; that he at that time had about 225 head of hogs and was fattening them on garbage; that the garbage from said hotel would feed and fatten 100 head of hogs and increase the weight of each hog 100 pounds in 90 days; that said 100 hogs would by reason of such additional weight increase in value in the aggregate $1,077.30; that the expense of hauling said garbage and feeding it to said hogs would amount to $464 during such period, leaving a net profit of $613.30. Thomas pleaded by cross-action the value of said cans and the net damages so claimed against Basden Carrell and also against the Baker Company, which he made a party to the suit, and sought recovery on said cross-action against both said firm and said company, or either of them, as he might show himself entitled by evidence. The Baker Company denied that any cans owned by Basden Carrell and so purchased by Thomas were in its possession, and also denied that its contract with said firm required it to give 90 days' notice of a purpose to terminate the same, and alleged affirmatively that it refused to allow Thomas to continue to remove such garbage because the facilities furnished by him were inadequate and his services in that connection were inefficient and unsatisfactory.
The case was tried before a jury on special issues and findings returned thereon. The substance of said findings may be properly condensed as follows:
(a) That the Baker Company had withheld from Thomas 40 garbage cans of the value of $3 each, which he had purchased from Basden Carrell.
(b) That said company had agreed with Basden Carrell to give them 90 days' notice if it desired to terminate said garbage contract; that said company did accept said Thomas to perform said contract instead of said firm.
(c) That Thomas, in the performance of said contract, furnished adequate facilities for handling such garbage and rendered competent and efficient service.
(d) That Thomas, as the direct result of the failure of the Baker Company to give 90 days' notice of its purpose to terminate said contract, suffered damage in the sum of $500.
The court rendered judgment on said verdict in favor of the firm of Basden Carrell against said Thomas in the sum of $560.76, the full amount remaining unpaid on the note sued on, and foreclosed their mortgage lien on the personal property in part payment for which said note was given. The court rendered a further judgment that Thomas take nothing on his cross-action against Basden Carrell, and that he recover of the Baker Company the sum of $620, the value of said cans, and the amount of damage found in his favor against said company by the verdict of the jury. Both the Baker Company and John H. Thomas have appealed.
Such alternative pleading is permissible when a party is doubtful of the facts he can establish, and it is necessary for his full protection to plead in a double aspect and to join two defendants, one or both of whom are liable to him in whole or in part for his damages, and where each of said parties is contending that such damages resulted from the wrong or default of the other. Floyd v. Patterson,
The Baker Company presents as ground for reversal a proposition complaining of the action of the court in submitting over its objection the issue of damages to Thomas arising from the breach of his contract in the following form: "What is the amount of damage, if any, so suffered?" In response to such issue the jury answered: "500." The gist of said objection was that there was no legal or competent evidence in the case upon which the jury could find any certain sum as such damage. Thomas alleged as the measure of his damages the loss of the net profits he would have realized had he been permitted to continue for a period of 90 days to receive such garbage and feed the same to his hogs. Said allegations have hereinbefore been set out in detail. The testimony disclosed that when the Baker Company refused to longer deliver such garbage to him he sold approximately the number of hogs which he testified he could have fed and fattened thereon. He introduced testimony tending to support his allegation that if he had kept the hogs so sold and had been permitted to feed them on such garbage, they would have increased in weight during said period, and consequently in value at the end thereof, in approximately the sum of $1,000 as alleged by him. He wholly failed to introduce any evidence of the amount of expense which he would have probably or necessarily incurred in handling said garbage and feeding the same to said hogs or otherwise in connection with their keep during that time. We think the loss of profits, if any, resulting from the breach of the company's contract to furnish such garbage to Thomas, should reasonably be supposed to have been within the contemplation of the parties at the time said contract was made and at the time Thomas was accepted as a party thereto instead of Basden Carrell. The measure of his damages was therefore the net loss, if any, sustained by him as the direct and proximate result of the breach of such contract. Jones v. George,
In all the cases above cited, it appears either expressly or with reasonable certainty that net profits only were held recoverable. Thomas admitted in his pleading that the hauling of such garbage and feeding same to his hogs was attended with material expense. His statement therein of the *340
amount of such expense was not necessarily an admission against interest, as contended by him. If such expense would have exceeded the amount stated in such pleading, the same was a self-serving declaration and not an admission against interest. Thomas, in order to recover, was required to show, not only that he sustained pecuniary loss or damage by reason of the breach of said contract, but to also furnish testimony from which the net amount of such loss could be determined by the jury with reasonable accuracy. I. G. N. R. Co. v. Simcock,
Basden Carrell, appellees herein, ask that their judgment against Thomas be affirmed, regardless of the disposition made of the appeal of the Baker Company from the judgment rendered in his favor against it. We have heretofore held that Thomas was entitled to join both Basden
Carrell and the Baker Company as defendants in his cross-action that he might have the issues involved determined in a suit to which both were parties. Thomas claims no defense to the note sued on by Basden
Carrell unless it should be determined, as contended by the Baker Company, that they did not leave in its possession the 40 cans in controversy and that their contract with said company did not require it to give 90 days' notice of a purpose to terminate the same. Since the judgment in favor of Thomas against the Baker Company is here reversed, such issues remain undetermined. The reasons which justified the original joinder of Basden Carrell and the Baker Company as defendants in Thomas' cross-action still continue, and his right to such joinder would be defeated if their judgment against him was affirmed. The manifest justice of the case requires that we treat the judgment appealed from as an entirety and that we reverse and remand the same as to all parties, and it is so ordered. Hamilton Co. v. Prescott,