Smith v. Sherwood

• Decision Date: 31 December 1847
• Citation: 2 Tex. 460
• Parties: STERLING SMITH v. ABSALOM SHERWOOD
• Court: Texas Supreme Court

2 Tex. 460

STERLING SMITH

v.ABSALOM SHERWOOD

Supreme Court of Texas.

December Term, 1847.

Appeal from Bowie County.

A party defendant cannot at the trial avail himself of an affirmative matter of defense which he has not alleged or set out in his pleading.

An offer to deliver, and a refusal to receive, is a sufficient compliance with a promise to deliver specific goods. After such offer and refusal, the parties stand to each other in the relation of bailor and bailee.

In cases of civil injury or breach of contract, in which there is no element of fraud, willful negligence or malice, the measure of damage is simple compensation for the actual loss sustained. In money demands, the compensation embraces not only the original amount due, but interest for its detention and costs of the suit brought for its recovery. [5 Tex. 141;6 Tex. 266;9 Tex. 358;18 Tex. 228;27 Tex. 620.]

In cases of trespass or tort accompanied by oppression, fraud, malice or negligence so gross as to raise a presumption of malice, the jury have a discretion to award exemplary or vindictive damages by way of punishment to the wrongdoer.

This suit was instituted by Sherwood, the appellee, against Smith, the appellant, for the tortious taking and conversion of one hundred and twenty bushels of corn which the former alleged the latter had sold and delivered to him. The answer contains a general denial and a plea of set-off. It appears from the statement of facts that the plaintiff below had exchanged corn with the defendant; that the latter had delivered the corn sued for to the plaintiff, who by the permission of the defendant had put it in a pen by itself, the defendant consenting that it should remain on the premises until the plaintiff could conveniently take it away. Subsequently the defendant appropriated the corn to his own use. It further appears that the consideration of the corn thus delivered was an equal quantity of other corn, which the plaintiff had procured of one Graham, and which was in a pen containing two hundred and forty bushels; that Stalcap, the defendant's overseer and agent, went to Graham, who told him the corn, being that procured for him by the plaintiff, was ready for him. Stalcap said he would not take it then, as his crib was not ready to receive it and he had to repair his wagon body. Some time after this, an overflow of the river destroyed this corn. Corn was proven to be worth at the time seventy-five cents per bushel.

At the trial, the defendant's counsel moved the court to instruct the jury “that if they believe that the consideration for the corn Smith let Sherwood have was one hundred and twenty bushels in a pen of two hundred bushels, and if the two hundred bushels had been destroyed by accident before Smith had his one hundred and twenty bushels set apart, Sherwood cannot recover.”

This instruction was refused. The jury returned a verdict for the plaintiff for two hundred and sixteen dollars; judgment was rendered thereon; and the defendant appealed.

Morrill, for appellant.

Jones, for appellee.

Mr. Justice WHEELER delivered the opinion of the court.

For the appellant it is insisted,

1st. That the court erred in refusing the instruction asked.

2d. That the verdict was for an amount excessive and not warranted by the evidence.

1. The instruction asked by the defendant went to the question of a failure of consideration. But there is in the answer no averment of a failure of consideration and no intimation of any intention on the part of the defendant of relying upon that defense. And we have repeatedly decided that a party cannot avail himself thus of an affirmative, substantive defense which he has not averred.

But had this defense been properly presented, it was unsupported by the evidence.

Graham, who acted for Sherwood, apprised the overseer of Smith, who seems to have been acting as agent for the latter, that the corn was ready for him, but he refused to receive it. Here was an offer to deliver and a refusal to receive; and this has been adjudged a sufficient compliance with a promise to deliver specific goods, and as changing the relation of the parties to that of bailor and bailee. 4 Wend. 525;13 Id. 95; 3 J. C. 243; 2 Kent, 508, and cases cited. No objection was made that the corn was not designated and set apart; but the refusal to receive was placed by Smith's agent upon the express and sole ground of his own want of...