Consumers' Lignite Co. v. James , 1918 Tex. App. LEXIS 690 ( 1918 )

The assignments predicated on the action of the trial court (1) in overruling appellant's exception to the petition so far as it was for a recovery of exemplary damages, (2) in instructing the jury, on conditions specified, to find in appellee's favor for such damages, and (3) in refusing requested special charges to find against appellee on his claim for such damages, will be sustained. It did not appear from the allegations in the petition, or the testimony heard, that the case was within any exception to the general rule which denies a right of recovery of exemplary damages for the breach of a contract. 3 Elliott on Contracts, § 2124; Railway Co. v. Shirley, 54 Tex. 125; Burnett v. Edling, 19 Tex. Civ. App. 711, 48 S.W. 775; Tel. Co. v. Luckett,60 Tex. Civ. App. 117, 127 S.W. 856; Ins. Co. v. Ross, 170 S.W. 1062.

The contention that the judgment for $185 as actual damage is excessive is supported by the record, unless appellee was entitled to recover on account of expense incurred by him in the effort he made to secure employment he finally obtained. It appears from his petition that he did not seek a recovery of such expense. There was therefore no basis in his pleadings for a recovery on that account, and none should have been awarded him even if the amount of such expense had sufficiently appeared from the testimony. It was shown that two months after appellee ceased to work for appellant at $83.33 per month he began, and thereafterwards for longer than a year continued, to work for other parties at $90 per month. He admitted he was indebted to appellant in the sum of $21.48 at the time he ceased to work for it. The $568.27 paid him by appellant for six months and twenty-five days' work, added to the $285 paid him by his new employers for three months and five days' work, made a total of $853.27 received by him for his services for the year covered by his contract with appellant. That amount deducted from $1,000, the amount appellant agreed to pay him for the year's work, left $146.73 as the difference between the sum he was entitled to demand and receive of appellant and the sum he did receive for the year's work. The judgment, it seems, should have been in his favor for said sum of $146.73 less the $21.48 he owed appellant; that is, for the sum of $125.25. It will be reformed so as to award him a recovery of only said sum of $125.25, and as so reformed will be affirmed.