Sutton v. Wife
| Decision Date | 31 December 1849 |
| Citation | 4 Tex. 142 |
| Parties | SUTTON v. PAGE AND WIFE. |
| Court | Texas Supreme Court |
It is a rule which ought to be as obligatory here as in England that unless the damages be such as may be presumed necessarily to result from the breach of contract, they must be stated specifically and circumstantially, in order to apprise the opposite party of the facts intended to be proved. Thus, in an action against the vendor of an estate, it is held that if the purchaser proceed for interest and expenses, he must declare specially, stating such expenses and the loss arising from not having the use of the deposit money, &c.
Quere? As to the measure of damages in an action by the vendee against the vendor of real estate, upon the usual personal covenants in a conveyance.
Where, in an action on a bond for title, the petition discloses that it is not in the power of the defendant to make the title, and does not allege any special damage, the measure of damages is the purchase-money paid with interest. In such a case the bond for title is a claim for money within the meaning of the fifteenth section of the act of March 20, 1848, to regulate proceedings in the County Court pertaining to the estates of deceased persons. (Note 28.)
It seems that a claim against an estate, which requires the intervention of a jury to ascertain the damages, is not such a “claim for money” as the law requires to be presented to the administrator for allowance before instituting suit.
Where a bond for title, being a claim for money, was presented to the administratrix and allowed, and also approved by the Chief Justice, and was afterwards lost, together with the evidence of its allowance and approval-- there was no allegation that the administratrix denied the existence of the bond nor its approval-- Held, In a suit to enforce the bond, that the District Court would not entertain the suit, under the prayer for general relief, merely to supply the loss of the bond, &c.
Appeal from Walker. The appellant filed his petition in the District Court on the 6th day of June, 1849, alleging in substance that on the 23d day of January, 1840, John Robbins, since deceased, in consideration of the sum of $1,480, executed and delivered to the plaintiff a bond in the sum of $4,000, conditioned to make title to a certain tract of land held by Robbins by virtue of a location of his headright certificate. The petition further alleges that the bond was duly recorded in Montgomery county, and a certified copy from the records is made a part of the petition; that Robbins died without performing any part of the contract on his part; that his widow administered, and subsequently intermarried with Richard Page, and they are made defendants; that in the year 1847 the plaintiff caused the bond to be presented to the said administratrix; that it was duly accepted by her, and also presented to and approved by the Probate Court of the proper county, and that the acceptance and approval were indorsed upon the bond; that the bond was subsequently lost. The petition further alleges that the decedent in his lifetime, or the administratrix after his death, lifted and removed his location from the land so contracted to be conveyed to the plaintiff, and located the certificate elsewhere; whereby the administratrix was incapacitated to make or procure for the plaintiff a title to the land in compliance with the bond; and that neither the intestate in his lifetime, nor his administratrix since his death, had performed their covenant and agreement contained therein; that the plaintiff is advised that the “said acceptance is indefinite, and that he has no other means of ascertaining his damages, which he avers to be two thousand dollars, but by resort to this court;” concluding with a prayer for judgment for his damages, and for general relief. The condition of the bond recites that “the said Isaac Sutton has this day purchased, for the sum of fourteen hundred and eighty dollars, in good and lawful money, the receipt whereof is hereby acknowledged, from the said John Robbins, twelve hundred and eighty acres of land, to be set apart out of the league of land belonging and appertaining unto the said Robbins as his headright,” the location of which is particularly described. There is also accompanying the petition an affidavit of the loss of the bond, and its acceptance by the administrator and approval by the probate judge.
At the Fall Term, 1849, the defendants appeared and excepted to the petition for want of jurisdiction in the District Court, alleging that the subject-matter of the suit is properly cognizable only in the Probate Court. They further answered, expressly admitting that “the said bond has been presented to Penelope Page, administratrix as aforesaid, and allowed by her in the manner and form described by the plaintiff, and that the said allowance has been approved by the Chief Justice of Walker county,” concluding with a general denial. The defendants subsequently amended their answer by denying that the administratrix of John Robbins, deceased, had ever refused to allow, or that the chief justice and judge of probate had ever refused to approve, the said bond. The cause was heard upon the defendants' exceptions to the jurisdiction of the court, which were sustained, and the suit dismissed; and from this judgment the plaintiff appealed.
Yoakum & Taylor, for appellant, argued that the allowance of such a bond as is sued on in this case amounts to nothing. It is not a judgment for want of certainty. Does the allowance give a right in the obligee to the whole penalty of the bond or to such damages as he has actually sustained by the nonperformance? Sutton had a right to demand the value of the land at the time of the removal of the certificate. Who is to fix the amount?
II. The act of 1846 (sec. 13, 14, and 15) required all claims to be presented. The act of 1848 requires “claims for money” only to be presented. The bond in this case was presented and allowed under the act of 1846. Suppose the allowance was equivalent to a judgment by default: who will ascertain the damages? The probate judge? The Legislature has not bestowed any such extraordinary powers upon that officer. It is left to the District Court under the Constitution. (Chevallier v. Wilson and Wife, 1 Tex. R., 177.)
III. The bond allowed and approved was lost. The Probate Court had no authority to supply the loss. That being ...
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