Anding v. Perkins

• Decision Date: 31 January 1867
• Citation: 29 Tex. 348
• Parties: ABRAHAM ANDING v. JESSE PERKINS.
• Court: Texas Supreme Court

29 Tex. 348

ABRAHAM ANDING

v.JESSE PERKINS.

Supreme Court of Texas.

January, 1867.

Where there is no statement of facts in the record, the court will presume, in support of the judgment, that everything was proved which could legally be proved under the issues. But where there were no pleadings to support the verdict of the jury, and the issues in the pleadings did not warrant the charge to the jury, the judgment will be reversed. Pas. Dig. art. 1490, note 582; 24 Tex. 202.

Sedgwick declares the rule that, in an action brought on a warranty, the true measure of damages is the difference between the value which the thing sold would have brought at the time of the sale, if it had been sound or corresponding to the warranty, and its actual value with the defect. The price paid is strong, but not conclusive evidence.

The court has held that, where there is a failure of title, the measure of damages is the sum paid for the article, with interest from the time it was paid. Anderson v. Duffield, 8 Tex. 237;Scranton v. Tilley, 16 Tex. 183;8 Tex. 237;16 Tex. 183;26 Tex. 533.

Where the plaintiff sold a land certificate with warranty of title, and it proved to be a spurious unrecommended certificate, in the absence of any averment of fraud the necessary measure of damages is the purchase money, with interest. Pas. Dig. note 540.

Fraud, coupled with concealment of the cause of action, will suspend the running of the statute, and entitle the plaintiff to an action upon the discovery of the fraud, or at such time as he might have done so by the use of reasonable diligence. And if a party sell a forged land certificate, the ordinary diligence was when the proper land officer discovered the spuriousness of the title. Pas. Dig. art. 4604, note 1017; 27 Tex. 14.

ERROR from Trinity. The case was tried before Hon. JAMES M. MAXCY, one of the district judges.

The history of the case is fully given in the opinion of the court. The suit was brought on the 6th of October, 1858.

H. C. Pedigo, for the plaintiff in error, cited Sedgwick on the Measure of Damages, 159; 4 Kent, Com. 479.

George F. Moore, for the defendant in error, cited the authorities reviewed by the court. 1. In answer to the first assignment, it will be seen from the plaintiff's brief that the only ground that is urged to sustain the demurrer is, that the petition shows upon its face that the matter in controversy is not within the jurisdiction of the court, because the purchase money paid for the certificate was only $60, and that the measure of damages was the purchase money and interest; but surely it cannot, under any rule, be contended that the vendee would not be entitled also to recover the amount expended for locating, surveying, etc., and if not under the allegations of the petition, this would be sufficient to sustain the jurisdiction of the court.

It has, however, been decided by this court that a certificate is personal property. Randon v. Barton, 4 Tex. 289. The measure of damages then is not that contended for by plaintiff, but it is the highest market value of the article sold at any time up to the time of the trial of the cause.

2. The court below regarded the plea to the jurisdiction, as plaintiff calls it, as a special exception to the petition, and merely presenting the same objection that had been urged under the general demurrer, and if that was properly overruled, the ruling upon it was also correct. But if it is to be regarded as a plea in abatement, the ruling of the court certainly worked no injury to the plaintiff in error. The court was fully authorized to treat it as a nullity. It was not filed in due order of pleading, nor does it contain the essential allegations of matters in abatement. The petition having alleged damages which, prima facie, gave jurisdiction to the court to have abated the suit, the plaintiff must have alleged in his plea that the allegation of damages was fraudulently made, for the purpose of giving jurisdiction to the court, which is not done in this case, and the plea should also have been sworn to. Bridge v. Ballen, 11 Tex. 269.

3. As we suppose it is a settled rule of the court, not to reverse a case for an error in the charge of the court when there is no statement of facts to enable the court to determine whether the error in the charge could have worked any injury, though we do not think from an inspection of the record that there is any valid objection to the charge. The first objection that is urged against the charge is, that the court gave an instruction to the jury upon an issue not presented by the pleadings. Whether or not, under the allegations of the petition, proof should have been received to establish vindictive damages is now an immaterial inquiry. The allegations of the petition authorize a recovery for the amount of damages given by the verdict, and if the evidence were before the court it might be shown that it fully sustained the verdict, and of course a charge, if there were no testimony to call for it, could not then affect the case.

But we presume, if a party permit testimony not strictly admissible under the allegations in the pleadings to go to the jury without objection, he could not object for the first time in this court, or after the judgment, that the court had given a charge appropriate to such testimony. The motion for a new trial shows that there was testimony before the court authorizing the charge complained of; and for aught that this court may know this character of testimony was drawn into the case by the course of defense and with the consent of the plaintiff.

The other objection to the charge of the court is equally untenable. Certainly the statute of limitation could not commence to run until after the damage has accrued for the recovery of which the suit is brought, and this certainly did not occur until the certificate failed to effect the object of securing the land located by it. It is also to be borne in mind, that the warranty in the deed extends to the land to be located by virtue of the pretended certificate; and consequently, until there was an attempt to locate, the damage did not accrue.

WILLIE, J.

The appellee brought suit in the court below against appellant, to recover damages for breach of warranty upon the sale of a certificate for six hundred and forty acres of land. The petition alleges in substance, that the said Anding, appellant, for the consideration of $60 in cash, sold to Perkins, the appellee, the said certificate, which purported to have been issued on the 10th of January, 1840, by the land commissioners of Jasper county, to Timothy McGregor, and executed a deed of conveyance of the same, dated 26th September, 1849; and that in the said deed of conveyance he entered into covenants of warranty, and, in the sale of the same, held out the idea and representation that the certificate was genuine; that petitioner, believing these representations, purchased the said certificate for the price above stated, on the said 26th September, 1849; that he afterwards carried said certificate to be...