Watkins v. Junker

• Decision Date: 12 April 1897
• Citation: 40 S.W. 11
• Parties: WATKINS v. JUNKER.
• Court: Texas Supreme Court

40 S.W. 11

WATKINS v. JUNKER.

Supreme Court of Texas.

April 12, 1897.

Error to court of civil appeals of Fourth supreme judicial district.

Action by J. B. Watkins against Guy W. Junker. A judgment for defendant in reconvention was affirmed by the court of civil appeals (38 S. W. 1129), and plaintiff brings error. Reversed.

Greer & Greer and W. H. Ford, for plaintiff in error. O'Brien, Bordages & O'Brien, for defendant in error.

BROWN, J.

Watkins sued Junker to recover a demand for $620.98 alleged to be due for the services and the rental of certain boats. Junker pleaded in reconvention for damages resulting from a failure to furnish certain dredge boats under a contract between the parties. There have been several trials of the case, and once it was appealed to the supreme court, before the organization of the courts of civil appeals, and by the supreme court reversed. 19 S. W. 390. After which it was again tried, and appealed to the court of civil appeals, which reversed the case again. 23 S. W. 802. Upon the third trial the defendant below recovered of Watkins the sum of $3,262.52, less $1,013.08, the amount of the claim (and interest) sued for by the plaintiff in the case, leaving the balance in favor of the defendant, on his plea in reconvention, $2,249.44. The plaintiff in error has assigned a number of grounds in his application upon which he complains of the judgment of the district court and court of civil appeals, but we deem it unnecessary to notice any of them except that one which calls in question the correctness of the charge of the court, wherein the jury was instructed to allow interest at 8 per cent. upon the damages which they might find in favor of the defendant upon his plea in reconvention. The facts found by the court of civil appeals, and which are sufficient to understand the questions to be discussed, are as follows: "We conclude that the facts show: That appellee had entered into a contract with the federal government to perform certain services at Calcasieu Pass. That to perform the labor contracted to be performed required, at a certain stage in the work, the use of dredge boats. That appellee, before entering upon the work, entered into a contract with appellant which required appellant, on 10 days' notice, to furnish the necessary dredge boats. Relying upon the promise of appellant, through his agent, Thompson, appellee entered upon the work, and, after proceeding until it was about time to use the dredge boats, appellee applied to appellant for the dredge boats, which he failed and refused to furnish. Appellee used every endeavor to obtain other dredge boats, but failed to get them. That by reason of the failure of appellant to furnish the dredge boats appellee lost all that he had expended on two revetments, the government refusing to pay him anything for the work because he could not complete his contract. Appellant knew that the dredge boats were indispensable to enable appellee to finish his contract. Appellee was damaged in the amount found by the jury, after deducting the amount due appellant by appellee."

It is objected in this case that interest is a creature of the statute, and cannot be allowed upon unliquidated damages. It is true that interest, strictly speaking, exists only by statutory law, but it is likewise true that courts have recognized the fact that compensation for detention of that which is due on account of injury inflicted is an element of damages necessary to the complete indemnity of the injured party; and the courts have, by analogy, adopted the legal rate of interest fixed by statute as the standard by which to be governed in assessing damages for the detention of money. In the case of Heidenheimer v. Ellis, 67 Tex., on page 428, 3 S. W. 667, the court said: "It is frequently said in the decisions of the courts that interest is the creature of the statute. In a certain sense this is true, but as applied to one class of cases the phrase is misleading. Interest cannot be allowed eo nomine unless expressly provided for by statute, but in many instances it may be assessed as damages when necessary to indemnify the party for an injury inflicted by his adversary, though the statute be silent upon the subject." It may not be technically correct to call this compensation "interest," but that is a term so familiar that it is perhaps the most expressive and intelligible that could be used to inform the jury what the rights of the parties are. At any rate the use of the word does not constitute error for which a judgment would be reversed.

Interest, as damages, may be allowed upon unliquidated demands, whether they arise out of a breach of contract or out of a tort. 1 Sedg. Dam. § 320. Interest, however, cannot be allowed upon damages arising from assault and battery, libel and slander, seduction, false imprisonment, nor for personal injuries and the like. Sedg. Dam. § 320; ...