Stump v. F. A. Officer & Co.

• Decision Date: 04 April 1923
• Docket Number: (No. 6923.)
• Citation: 250 S.W. 308
• Parties: STUMP v. F. A. OFFICER & CO.
• Court: Texas Court of Appeals

250 S.W. 308

STUMP v. F. A. OFFICER & CO.

(No. 6923.)

Court of Civil Appeals of Texas. San Antonio.

April 4, 1923.

Appeal from Tarrant County Court; P. W. Seward, Judge.

Suit by W. I. Stump against F. A. Officer & Co. Demurrer to jurisdiction sustained, and plaintiff appeals. Reversed and remanded.

Power, Dryden & Rawlings and Stewart & McGaw, all of Fort Worth, for appellant.

McCart, Curtis & McCart, of Fort Worth, for appellee.

FLY, C. J.

Appellant sued appellee, alleging the breach of a contract for the purchase from it of ten cars of bright baled oat straw at the rate of $15 per ton, and a brokerage fee of $3 per car, which was to be allowed appellant. Appellant pleaded damages in the sum of $870, and for his interest and costs of suit. The original petition was filed on February 5, 1920, and on December 1, 1921, an amended petition was filed setting out the cause of action in detail, and praying for the recovery "of the sum of $870, his said damages sustained by breach of said contract, and interest on said amount from December 1, 1917, at the rate of 6 per cent. per annum." The court sustained a demurrer to its jurisdiction, because the amount in controversy was more than $1,000.

There is no provision in the statutes of Texas for interest on damages claimed for a breach of contract, and consequently it belongs to a class of cases in which interest upon the amount of damages is allowed as a part of the damages. As said by this court in Sims v. Sinton State Bank, 238 S. W. 316:

"Appellant could not claim interest against appellee except as damages given for punishment of a tort. It is the settled rule in Texas that interest sued for eo nomine as an incident to a contract is not considered in determining jurisdiction, but, where sued for only as an element of damages arising from a breach of contract or tort, it must be considered in ascertaining jurisdiction"—citing Close v. Fields, 13 Tex. 623; Bank v. Jones, 18 Tex. 811; Fowler v. Davenport, 21 Tex. 635; Railway v. Jackson, 62 Tex. 209; Heidenheimer v. Ellis, 67 Tex. 426, 3 S. W. 666; Railway v. McCarty, 82 Tex. 608, 18 S. W. 716; Baker v. Smelser, 88 Tex. 26, 29 S. W. 377, 33 L. R. A. 163; Watkins v. Junker, 90 Tex. 584, 40 S. W. 11; Schulz v. Tessman, 92 Tex. 491, 49 S. W. 1031; McNeill v. Casey (Tex. Civ. App.) 135 S. W. 1130; Robinson v. Lingner (Tex. Civ. App.) 183 S. W. 850; Bell v. Gerlach (Tex. Civ. App.) 205 S. W. 470; Walker v. Alexander (Tex. Civ. App.) 212 S. W. 713; Railway v. Allen (Tex. Civ. App.) 189 S. W. 765.

This suit was instituted on February 5, 1920, it being alleged that the cause of action accrued on December 1, 1917, two years, four months, and two days prior to the institution of the suit. The claim of appellant in his original petition, principal and interest, amounted to about $984, which was within the jurisdiction of the court. The cause of action will be tested by the allegations of the original petition, when the amended petition does not set up a new cause of action. In the original petition the prayer was:

"Wherefore plaintiff prays that citation issue to the defendant, that it be compelled to answer herein, that this cause be set down for hearing, and that plaintiff recover judgment against the defendant for his said damages, interest, and costs of suit, and for general and special relief."

In the case of Railway v. Fromme, 98 Tex. 459, 84 S. W. 1054, the prayer was as follows:

"Plaintiff says that on account of defendant's default as hereinbefore set out he has been damaged in the sum of $95 and though often requested so to do defendant has failed to pay the same or any part thereof. Wherefore plaintiff prays that defendant be cited to answer this petition, and that upon final trial he have judgment for his damages, interest, and costs of suit, and for such other and further relief to which he may be entitled either in law or equity."

The two prayers are very similar, the only marked difference being that appellant herein desired to compel appellee to answer. The Supreme Court held that the amount sued for was the $95 and the interest, which was to be considered as a part of the damages, and not merely as interest. The court said:

"It was the purpose to claim $95, damages, for the...