Neill v. Newton

• Decision Date: 01 January 1859
• Parties: ANDREW NEILL v. J. H. NEWTON.
• Court: Texas Supreme Court

24 Tex. 202

ANDREW NEILL

v.J. H. NEWTON.

Supreme Court of Texas.

1859.

Where there are no pleadings to support the judgment, it will be reversed, although there be no statement of facts, or bill of exceptions, in the record. 29 Tex. 348.

Exemplary damages might be recovered for a refusal to pay over money collected, where there were aggravated circumstances of misrepresentation and deception, and special damage resulting immediately therefrom. 15 Tex. 113;28 Tex. 448.

But a plaintiff, in an ordinary case of neglect or failure to pay over money collected, unattended by other circumstances, cannot recover vindictive damages.

The mere charge in the petition, that the defendant “has fraudulently appropriated it to his own use, for though repeatedly called upon by your petitioner to pay over the same, he has failed to account,” etc., will not sustain a verdict for exemplary damages.

ERROR from Guadalupe. Tried below before the Hon. Alexander W. Terrell.

This was a suit by J. H. Newton, the defendant in error, against Andrew Neill, for the amount collected by him for the defendant in error, on certain promissory notes; and for vindictive damages, for his failure to pay over the same.

There was a verdict and judgment in favor of the defendant in error, for $112 for his debt, and $100 for damages. The facts are stated in the opinion.

John Ireland, for defendant in error.

BELL, J.

This suit was instituted by Newton against Neill. The petition alleged, that Neill received from Newton certain notes, on one Callihan, for collection. The petition nowhere alleges that Neill is an attorney at law, or that the relation of attorney and client existed between the parties. The petition states that “the said Andrew Neill has long since collected the money from the said Callihan, and, as your petitioner believes, has fraudulently appropriated it to his own use, for though repeatedly called upon by your petitioner to pay over the same, he has wholly failed to account for the same, or any part thereof, to your petitioner's damage,” etc. The prayer of the petition is, that the plaintiff may have judgment against the said Neill, for the principal and interest of the money so collected, as well as for exemplary or vindictive damages for the fraudulent or negligent failure to account to petitioner for the money collected, etc. The petition stated no circumstances of deception on the part of Neill; did not charge him with any misrepresentations in relation to the collection of the money, and stated no special or actual damage, that had resulted to the petitioner, from Neill's failure to pay over the money promptly when collected.

The judge below...