Goggan v. Evans

Decision Date29 January 1896
Citation33 S.W. 891
PartiesGOGGAN et al. v. EVANS.
CourtTexas Court of Appeals

Appeal from district court, Travis county; F. G. Morris, Judge.

Action by George O. Evans against Thomas Goggan and others. There was a judgment for plaintiff, and defendants appeal. Reversed.

Z. T. Fulmore, for appellants. John Dowell, for appellee.

KEY, J.

Appellee sued appellants to rescind a contract for the purchase of a piano, and to recover the purchase money already paid, alleging that the contract was procured by fraud. He alleged that he had paid on the contract $649.33, and prayed judgment for the same, and for $500 exemplary damages, but did not ask for interest on the amount so paid. The court instructed the jury, if they found for the plaintiff on the issue of rescission, to also find for him the amount paid by him under the contract, with interest at the legal rate from the 1st day of January after each payment. The body of the verdict is in these words: "We, the jury, find for the plaintiff on the issue of cancellation, and for the payment made by the plaintiff, principal and interest, the sum of eight hundred and eighty-one 13/100 dollars; and we also find for punitory damages in the sum of one dollar." The court first rendered judgment for the plaintiff in strict accordance with the verdict; but, at the time it overruled appellants' motion for a new trial, which complained of the verdict as being in excess of the amount claimed in the petition, the court reformed the judgment, as to the amount of the recovery, as follows: "It is further ordered by the court that the judgment in this cause be, and the same is hereby, reformed, and rendered for plaintiff for the sum of $649.33, being the amount of the principal demand of said plaintiff, without interest, and the further sum of $1 punitory damages,—in all, the sum of $650.33,—so that said judgment shall hereafter read as follows," etc. This action of the court forms the subject of complaint in this court, and we think the complaint must be sustained, and the judgment reversed. Not having sought to recover interest on the payments made, appellee was not entitled to do so; and, in our opinion, this error was not cured by the action of the court in reforming the judgment. We do not think there is any merit in the contention that the court could not reform or correct its judgment without being requested so to do by one of the parties; but we concur in the proposition that, when a jury intervenes, the verdict must form the basis of the judgment. And, when the verdict awards to the plaintiff something that he has not asked for in his petition, unless the thing or amount so recovered is designated and identified by the verdict, the error cannot be cured, either by voluntary remission by the plaintiff, or by reformation by the court. This is so because the extent of the injury cannot be known, and until it is known it cannot be remedied, except by annulling the entire verdict. The verdict in this case awards to the plaintiff $881.13 for the payments made by him, and for interest thereon; but it does...

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4 cases
  • City of Rawlins v. Murphy
    • United States
    • Wyoming Supreme Court
    • May 9, 1911
    ...452; Babin v. Nolan, 6 La. Ann. 295; Brown v. Bessou, 30 La. Ann. 734; Van Piper v. Morton, 1 Mo.App. 651; 61 Mo.App. 440; Goggan v. Evans (Tex.), 33 S.W. 891; Express Co. v. Milton, 74 Ky. 49; Shockley Fischer, 21 Mo.App. 551; Denise v. Sweet, 68 Hun 188.) Interest is not recoverable upon ......
  • Sundahl v. First State Bank of Edmunds
    • United States
    • North Dakota Supreme Court
    • January 6, 1916
    ... ... Williamsburg City F. Ins ... Co. 45 Minn. 441, 48 N.W. 198; Acton v. Dooley, ... 16 Mo.App. 449; Watson v. Damon, 54 Cal. 278; Goggan ... v. Evans, 12 Tex. Civ. App. 256, 33 S.W. 891 ...          M. C ... Freerks, for respondent ...          An ... ...
  • Texas-Mexican Ry. Co. v. Sutherland
    • United States
    • Texas Court of Appeals
    • November 22, 1916
    ...upon motion of the successful party or upon the court's own motion. In H. & T. C. Ry. Co. v. Shults, 90 S. W. 506, and Goggan v. Evans, 12 Tex. Civ. App. 256, 33 S. W. 891, relied upon by appellant, the petitions alleged separate items or principal and interest, and it could not be determin......
  • Cook v. Greenberg
    • United States
    • Texas Court of Appeals
    • March 11, 1896
    ...67 Tex. 296, 3 S. W. 284; Kerr v. Hutchins, 46 Tex. 390; Bledsoe v. Wills, 22 Tex. 651; and May v. Taylor, Id. 349; Goggan v. Evans (Tex. Civ. App.) 33 S. W. 891. Because of the errors pointed out in the foregoing, we are constrained to reverse the judgment of the lower court, and remand th......

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