Sherrick v. Wyland

• Decision Date: 24 September 1896
• Citation: 37 S.W. 345
• Parties: SHERRICK v. WYLAND et ux.
• Court: Texas Court of Appeals

37 S.W. 345

SHERRICK v. WYLAND et ux.

Court of Civil Appeals of Texas.

September 24, 1896.

Appeal from Harris county court; John G. Tod, Judge.

Action by G. A. Wyland and wife against G. W. Sherrick. Judgment for plaintiffs, and defendant appeals. Reversed.

Kittrell & Allen, for appellant.

WILLIAMS, J.

Appellees sued appellant to recover damages for fraud and deception practiced upon them by appellant in the sale of lots in Houston. The alleged fraud consisted of the representation that the title was clear and that the lots were free from incumbrances, and the concealment of the fact that there existed upon them a vendor's lien in favor of parties from whom appellant had purchased. The damages alleged consisted of a fee of $100 paid by appellees to an attorney to procure from the holders of the lien a release thereof after appellees had learned of its existence, and profits which plaintiffs claimed they would have realized by improving and renting the lots, had they not been deterred from the making of the improvements by fear of the lien. They were allowed to recover these claims as actual damages. We are of the opinion that this was error. In neither instance was the loss the proximate consequence of the alleged fraud. It has often been ruled, in this state and elsewhere, that fees of counsel, incurred in prosecuting a suit for or defending against a wrong, are not ordinarily recoverable as actual damages, because they are not considered proximate results of such wrong. Landa v. Obert, 45 Tex. 547; Railway Co. v. Oram, 49 Tex. 346; Findley v. Mitchell, 50 Tex. 147; Railway Co. v. Wave, 74 Tex. 50, 11 S. W. 918; Flack v. Neill, 22 Tex 253. In cases where the wrong consists of a malicious act, or the perpetration of a fraud, in which punitory damages are claimed, evidence of such losses is admissible to be considered by the jury in determining the amount which should be allowed as such damages. If suit had been brought to enforce the vendor's lien, and appellees had unsuccessfully defended it and had lost the land, they could not, in a suit upon the warranty, have recovered of appellant fees paid to counsel for making such defense, without showing some agreement by which appellant had undertaken to pay them. Turner v. Miller, 42 Tex. 418; Rowe v. Heath, 23 Tex. 620. In this case, as soon as appellees learned of the existence of the lien, appellant agreed to procure a release. One of the holders of the lien resided in Houston, and at once agreed...