Graham v. Roder

• Citation: 5 Tex. 141
• Parties: GRAHAM v. RODER.
• Decision Date: 31 December 1849
• Court: Supreme Court of Texas

5 Tex. 141

GRAHAM

v.RODER.

Supreme Court of Texas.

December Term, 1849.

The amount claimed by the plaintiff in his petition is the amount in controversy, and determines the question of jurisdiction, unless it appears from the petition that the case is not within the jurisdiction, or unless it otherwise appears that the plaintiff, in framing his petition, has improperly sought to give jurisdiction where it did not properly belong. (Note 21.)

In doubtful cases all intendments are in favor of the jurisdiction.

Although fraud will not, in general, be presumed, but must be proved, yet there is no doctrine better settled than that it may be proved by circumstantial or presumptive evidence.

In cases growing out of the non-performance of contracts, out of the infringement of rights created, or non-performance of duties imposed by law, in which there is no element of fraud, willful negligence, or malice, the compensation recoverable in damages consists solely of the direct pecuniary loss. In such cases no manner of stating the cause of action nor any claim for damages will give the District Court jurisdiction where the direct pecuniary loss is less than one hundred dollars.

Where the elements of fraud, malice, gross negligence, or oppression mingle in the controversy the law, instead of adhering to the system or even the language of compensation, adopts a wholly different rule. It permits the jury to give what it terms punitory, vindictive, or exemplary damages. In all such cases the question of jurisdiction is determined solely by the amount claimed in the petition. (Note 22.)

Appeal from Cass. The appellee sued the appellant in the District Court to recover damages for the fraudulent sale of a location or the right of location upon a tract of land. The original petition alleged, in substance, that the defendant, by false and fraudulent representations, induced the plaintiff to purchase of him the privilege of locating upon a certain tract of land; that the defendant falsely represented to the plaintiff that he had in his possession, as surveyor, a file or location upon said land for one Robertson, and that he, the defendant, was authorized by said Robertson to raise the location made for him and sell the right to locate the said land for one hundred dollars; and further, that if the plaintiff would execute to him his promissory note for that sum he, the defendant, would deliver to him the file or location made for said Robertson, or a copy thereof; that, induced by and confiding in the representations and promises of the defendant, he, the plaintiff, jointly with one Usry, executed to the defendant a promissory note for the sum of one hundred dollars, of which sum the plaintiff and said Usry were each to pay to the defendant the sum of fifty dollars in consideration for the said file and right of location. The plaintiff further represents that he entered into possession of the land, and that at the maturity of the note, being otherwise unable to pay the same, and still confiding in the representations and promises of the defendant, he was induced by him to deliver to one Hammond, in satisfaction of his proportion of said note, and for the use of the defendant, a wagon of the value of one hundred and twenty dollars. He further represents that he afterwards applied to the defendant for said file or location, or a copy thereof, but that the defendant failed and refused to furnish or produce the same, or any evidence whatever of there ever having existed any such file or location; and the plaintiff charges that in fact none such did exist, but that the representations of the defendant concerning the same were wholly false, and made with the intent to deceive and defraud the plaintiff of his property, and that in consequence of its loss he is damaged in the sum of four hundred dollars. The defendant demurred and answered by a general denial. The plaintiff subsequently amended his petition, alleging that in consequence of the fraudulent acts of the defendant, set forth in his original petition, he had been harassed with lawsuits, prevented from making crops, and put to great expense, &c. The defendant moved the court to strike out the amendments, which were but repetitions of the original petition. The court refused the motion.

The plaintiff proved that he applied to the defendant, who was surveyor of Bowie county, for information respecting vacant land on which to make a location, representing that he had but recently arrived in the country and was unacquainted with the condition of the lands of the country. The defendant stated that he had a file on a section of land which belonged to one Robertson, who had directed him to raise the location and sell the privilege of location for one hundred dollars. He said he believed the land to be vacant, except said location, but told the plaintiff to go and inquire among the neighboring settlers; which the plaintiff did, and then returned and made the contract of purchase, as alleged in the petition. The plaintiff proved the delivery of the wagon, as stated in the petition, in satisfaction of the note, and at the stipulated price of sixty dollars. One witness testified that it was worth eighty-five, another that it was worth one hundred dollars. The plaintiff further proved that he had demanded of the defendant a copy of the file or some evidence of the location having been made, for the lifting of which the note of the plaintiff had been given; but the defendant failed and refused to comply with his promise in this respect, and never did or would produce any evidence that there was or had been any such location ever made.

The defendant proved that at the time of the contract of purchase in question he told the plaintiff that if he made the purchase it must be at his own risk; that he was not selling for himself but another; that he believed the land to be vacant, but that if it should turn out not to be so, he would not be responsible.

It was admitted on the trial that at the time of the purchase by the plaintiff of the right of location the land was held by a survey under a valid certificate, the field-notes of which survey were recorded in Red River county, which formerly included the land in question, and that the plaintiff had been evicted from the land by reason of this prior appropriation by another. The plaintiff proposed to prove the damages he had sustained in defending his claim to the land and in consequence of his eviction. But this evidence, being objected to by the defendant, was excluded by the court; to which the plaintiff excepted. The jury returned a verdict of fifty dollars damages, upon which the court gave judgment. The defendant then moved the court to tax the plaintiff with all the costs of the suit; which motion the court refused. The defendant then moved the court for a new trial; which was also refused. He moved also in arrest of judgment upon the ground of the want of jurisdiction in the court. This motion the court overruled, and the defendant appealed.

Rogers, Webb, and Oldham, for appellant. This case, we think, is precisely similar to Swigley v. Dickson, (2 Tex. R., 192.) The pleader, in order to give the court jurisdiction of a case properly cognizable before a justice of the peace, has set out matters wholly irrelevant, and averred damages for which he could have no redress. The amount in controversy was the fifty dollars paid with the wagon. Whether the wagon was worth fifty or five hundred dollars, will not alter the case. The parties had fixed its value by contract, and the appellant had no right to demand more for it than he sold it for; consequently the court had no jurisdiction, and should therefore have arrested the judgment and dismissed the cause. The foundation of this suit is the alleged fraudulent misrepresentations of the appellant. We think the evidence wholly fails to establish any fraud whatever on his part. Although the selection of land which he sold was previously located, the evidence is silent as to any knowledge on his part of that fact. No representation made by him is proved to be untrue. Besides, it was proved by witness Woodward, who was present at the time the trade was made, that Graham told the other parties that “if they bought the selection, it must be at their own risk; that he was not selling for himself, and would not be responsible.” To entitle the purchaser to recover the consideration paid, we contend that he should prove that the seller was guilty of a suppression of the truth or a suggestion of falsehood inducing the purchase. No proof of this kind was introduced.

Ferris, for appellee. The amount in controversy is clearly the amount claimed in the petition. (Hunter & Hyde v. Oelrich, Dallam, 357; United States v. McDaniel, 7 Pet. R., 1; 6 Pet. R., 349.) A party obtaining money by fraud is not only bound by law to refund the money, but in addition to pay all damages which may have resulted to the party upon whom the fraud was practiced. (1 Story Eq., 201; Gregg v. The Lessee of Sayre, 8 Pet. R., 244.)

LIPSCOMB, J., did not sit in this case.

WHEELER, J.

The ground principally relied on for a reversal of the judgment, and the only one which is deemed to require notice, is the refusal of the court to arrest the judgment for the alleged want of jurisdiction in the District Court.

Respecting the ruling of the court in permitting amendments, upon which the expression of an opinion is desired, we refer counsel to former decisions upon that subject. (Cartwright v. Chabert, 3 Tex. R., 261; Austin and Clapp v. Jordan, ante.)

We have repeatedly decided that the amount of the verdict does not determine the question of jurisdiction; but that question must be determined by the amount in controversy. (Swigley v. Dixon, 2 Tex. R., 192; Tarbox et al. v. Kennon, 3 Tex. R., 7; Austin et al. v. Jordan, ante.) We have also decided that the amount claimed by the plaintiff in his petition will be deemed the...