Belcher v. Bullion, 8754.

• Decision Date: 19 October 1938
• Docket Number: No. 8754.,8754.
• Parties: BELCHER et al. v. BULLION.
• Court: Texas Court of Appeals

121 S.W.2d 483

BELCHER et al. v. BULLION.

No. 8754.

Court of Civil Appeals of Texas. Austin.

October 19, 1938.

Rehearing Denied November 9, 1938.

Appeal from District Court, Tom Green County; O. L. Parish, Judge.

Suit in trespass to try title by Mrs. Lillian Belcher and others against D. I. Bullion, wherein the defendant filed a cross-action for actual and exemplary damages. From a judgment awarding the defendant actual damages, the plaintiffs appeal.

Judgment affirmed.

Kerr & Gayer, of San Angelo, for appellants.

Murphy & Leslie, of San Angelo, for appellee.

BAUGH, Justice.

Appeal is from a judgment in favor of appellee against appellants for $250 damages, awarded by a jury, for wrongful eviction of appellee from premises situated in San Angelo and owned by Mrs. Lillian Belcher.

The case arose as follows: On March 2, 1936, appellee Bullion, as tenant, was operating a barber shop in a building in San Angelo, Texas, owned by Mrs. Lillian Belcher. On that date she brought suit against him in trespass to try title, sequestered the property, had Bullion evicted, his fixtures removed from the premises, and later replevied the property. No citation was issued in the case, but on September 9, 1936, Bullion answered and filed a cross-action for actual and exemplary damages. The case was not tried until October, 1937. Upon a jury verdict, finding that Bullion had a rental contract on said premises for the period from December 15, 1935, to December 15, 1936, that the writ of sequestration was wrongfully and maliciously sued out, that his actual damages were $250, and that he was not entitled to exemplary damages, the trial court entered a judgment awarding appellants title and writ of possession to the premises, and appellee judgment for $250 as damages. Appeal is from the money judgment only.

The first contention made by appellants is that in his cross-action appellee pleaded a rental contract with Mrs. Lillian Belcher, and proved one made with Mrs. J. W. Belcher, a different person, thus constituting a fatal variance between the pleadings and proof.

The rule is elementary that to sustain a recovery the allegata and probata must correspond; and that plaintiff must recover, if at all, on the contract pleaded. In the instant case, however, even if it be assumed that the rental contract involved was made between D. I. Bullion and Mrs. J. W. Belcher, mother-in-law of Lillian Belcher, it was shown without controversy by appellants themselves that Mrs. J. W. Belcher was acting as the agent of Lillian Belcher, the owner of the property, with full and complete authority to bind her principal. No question was raised as to that, the case was tried throughout on that assumption, and no objection made either to the evidence or the submission of the special issues to the jury on the ground now here presented. That being true, and the agency and full authority of Mrs. J. W. Belcher to act for her principal, and to make a binding rental contract with appellee, even if it be conceded that the real principal was not disclosed to Bullion, the contract was clearly binding upon Lillian Belcher. Nowhere did Lillian Belcher deny the authority of Mrs. J. W. Belcher to act in the premises by pleading or otherwise; but on the contrary affirmatively showed her full authority to do so; and that whatever was done was done for her use and benefit and with her approval. Under such circumstances proof of a contract with the agent constituted no variance with the pleading of a contract with the principal. Baldwin v. Polti, 45 Tex.Civ.App. 638, 101 S.W. 543; Nimmo v. O'Keefe, Tex.Civ. App., 204 S.W. 883; Jackson v. Dickey, Tex.Com.App., 281 S.W. 1043; Griffin v. Berry, Tex.Civ.App., 6 S.W.2d 183; 2 Tex. Jur., § 113 p. 510.

Appellants' next contention is that under his proof appellee's damages were predicated upon anticipated profits, dependent upon the chances of trade, and consequently were too remote and speculative to warrant the judgment. Much has been written upon this question, but where a clear breach of contract is shown (in this case the jury found that it was both wilful and malicious) all that is required is that the amount of such damages be shown with reasonable certainty. In the instant case it was shown that a barber shop and beauty parlor had been operated in this property for approximately a year prior to the time appellee's fixtures were thrown out in the street at the instance of appellants and the building padlocked. The operators thereof, prior to the time appellee acquired the business in December, 1935, testified to profits from said business of $40 to $45 per week. Appellee testified that during his operation of the shop the profits were from $100 to $150 per month. It was not a new business, but a going concern, when appellee acquired it. In addition to the income from his trade appellee was receiving $12 per month rent from a beauty parlor installed in the rear of the building. Manifestly this evidence furnished sufficient criteria from which the jury could reasonably compute the extent of appellee's damages. That he was entitled to recover for loss of future profits in the instant case is not an open question. Graham Hotel Co. v....