Engelhardt v. Batla
| Decision Date | 09 May 1895 |
| Parties | ENGELHARDT v. BATLA et ux. |
| Court | Texas Court of Appeals |
Appeal from Colorado county court; Charles Riley, Judge.
Action by D. Engelhardt against Thomas Batla and wife for damages for breach of contract to lease a homestead. From a judgment for defendants, plaintiff appeals. Reversed.
J. W. Munson, for appellant.
Appellant sued appellees to recover damages for the breach of a contract to lease to the appellant a farm and farming implements for the year 1894. The contract was in writing, signed by the wife, but not acknowledged by her, and described the leased premises as "our entire homestead place, situated in Colorado county, Texas, about 20 miles south from Columbus, containing about 300 acres of land, 100 acres of which is in cultivation." Appellant agreed to pay $400 rent. The contract, which was set out in full in the petition, contained the following stipulation: "And, to secure the party of the second part in the control, use, occupation, and possession of said premises and implements, we, the parties of the first part, bind ourselves firmly by these presents to pay to the said party of the second part the full sum of four hundred dollars as damages for the breach of this obligation and undertaking." A breach of the contract was averred, and the damages were laid at $400. Defendants demurred to the petition that it showed no cause of action against them, and for special reason that the contract was void for uncertainty of description of the premises. The demurrer was sustained by the court, and, the plaintiff declining to amend, his suit was dismissed.
Appellees have moved to strike out appellant's brief, and dismiss the appeal, for the want of prosecution, because there is no assignment of error copied in the brief. The reason of the rule requiring the assignments of error to be copied in the appellant's brief would seem to be that it may appear to the court that the errors relied on have been properly assigned, and present the questions sought to be raised. Where a general demurrer has been sustained, all of the questions may be presented upon a simple assignment, to the effect that the court erred in sustaining the demurrer, and the reason for the rule requiring the assignment to be copied in the brief would cease. It would be too technical to enforce the rule, and deprive a party of his appeal, in such case. So the motion will be overruled.
We are of the opinion that the petition presents...
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Engelhardt v. Batla
...a judgment for plaintiff, he appeals. Reversed. J. W. Munson, for appellant. GARRETT, C. J. This case was before us on a former appeal. 31 S. W. 324. We then held that the appellant might recover, as stipulated damages, the $400 which the appellees undertook to pay for their breach of the c......