Pittman v. Bloch Queensware Co. , 48 Tex. Civ. App. 320 ( 1908 )


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  • Appellee brought this suit against appellant in a justice of the peace court, but the case was appealed to and finally tried in the County Court, where appellee obtained a judgment against appellant for $93.65.

    The suit was originally brought upon a verified account. The defendant filed a verified answer denying the justness and correctness of the account. It is stated in appellee's brief, though not otherwise made to appear, that in the County Court appellee pleaded orally that the goods were sold to the defendant upon a written order. However, that is not material. According to the statement of facts agreed to by the parties and approved by the judge, the only testimony that was introduced was the plaintiff's sworn account, the defendant's denial under oath and the original contract or written order for the goods and a price list accompanying said order.

    We sustain the second assignment of error, which complains of the action of the trial court in sustaining an exception to the defendant's cross-action or counter-claim, wherein the defendant sought to recover as damages the loss of profits which would have been made upon the goods ordered from the plaintiff. According to the averments of the plea referred to the goods were ordered for the Christmas holiday trade solely, and were not otherwise valuable to the defendant, and the plaintiff was aware of such facts. In such cases loss of profits is recoverable as special damages. (Jones v. George,61 Tex. 354; Western U. Tel. Co. v. Edsall,63 Tex. 677; Western U. Tel. Co. v. Sheffield,71 Tex. 574; Watkins v. Junker, 4 Texas Civ. App. 629[4 Tex. Civ. App. 629]; Chisholm v. U.S. Canopy Co.,77 S.W. 1062.) The latter is a Tennessee case quite similar to the one in hand, and in an elaborate opinion it was held by the Supreme Court of that State that the measure of damages included the loss of profits which would have been made if the goods had been delivered according to contract. However, the defendant was not entitled to recover anything for extra clerk hire. Such additional expense would have been incurred if the plaintiff had complied with the contract pleaded by the defendant, and therefore failure to comply with the contract did not cause such additional expense.

    We also sustain the fifth assignment which complains of the trial judge's finding of fact to the effect that the plaintiff delivered the goods to the railroad company. There is no evidence in the statement of facts that warranted the court in making such finding. The defendant having denied under oath the correctness of the plaintiff's sworn account, such account was not evidence of any fact, and there was no proof that the plaintiff had delivered the goods to the defendant or to any railroad or other carrier.

    On the other questions presented we rule against appellant. For the errors pointed out the judgment is reversed and the cause remanded.

    Reversed and remanded. *Page 322

Document Info

Citation Numbers: 106 S.W. 724, 48 Tex. Civ. App. 320, 1908 Tex. App. LEXIS 439

Judges: Key

Filed Date: 1/2/1908

Precedential Status: Precedential

Modified Date: 11/15/2024

Cited By (31)

Willingham v. Geitzenauer , 1913 Tex. App. LEXIS 995 ( 1913 )

Taber v. Eyler , 1913 Tex. App. LEXIS 168 ( 1913 )

Maddox v. Clark , 1913 Tex. App. LEXIS 646 ( 1913 )

Commonwealth Bonding & Casualty Ins. Co. v. Cator , 1915 Tex. App. LEXIS 459 ( 1915 )

Le Master v. Hailey , 1915 Tex. App. LEXIS 585 ( 1915 )

Lummus Cotton Gin Sales Co. v. Farmers' Co-Op. Gin Co. , 1915 Tex. App. LEXIS 609 ( 1915 )

Blair Hughes Co. v. Watkins Kelley , 1915 Tex. App. LEXIS 941 ( 1915 )

Grand Prairie Gravel Co. v. Joe B. Wills Co. , 1916 Tex. App. LEXIS 915 ( 1916 )

Hoyt v. First Nat. Bank of Chester , 247 S.W. 637 ( 1922 )

White v. Bond , 1962 Tex. App. LEXIS 2267 ( 1962 )

J. I. Case Threshing MacH. Co. v. Webb , 1915 Tex. App. LEXIS 1260 ( 1915 )

Hood v. Robertson , 33 S.W.2d 882 ( 1930 )

Guthrie Mill & Elevator Co. v. Union MacAroni Co. , 1922 Tex. App. LEXIS 359 ( 1922 )

Marantz v. Weisberg , 33 S.W.2d 505 ( 1930 )

Sanders v. Hickman , 1921 Tex. App. LEXIS 1115 ( 1921 )

Marion MacHine Foundry & Supply Co. v. R. T. Harris ... , 1930 Tex. App. LEXIS 255 ( 1930 )

National Bank of Cleburne v. M. M. Pittman Roller Mill , 1923 Tex. App. LEXIS 328 ( 1923 )

Coons v. Lain , 1914 Tex. App. LEXIS 1050 ( 1914 )

Gustafson v. Zunker , 257 S.W. 1114 ( 1924 )

Advance-Rumely Thresher Co. v. Higgins , 279 S.W. 531 ( 1926 )

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