Texas Co-Op. Inv. Co. v. Clark , 212 S.W. 245 ( 1919 )

On Motion for Rehearing. In his motion for rehearing appellee insists we erred in our original opinion in stating that the prayer, as well as the allegations, in the original petition was substantially the same as in the sixth amended or trial petition. He insists that in the original petition he asked for special relief only, while in the petition upon which the trial was had he prayed "for such other and further relief, judgments and decrees, legal and equitable, such as he may be entitled to under the facts in this case," etc. The original petition contained a prayer for "general relief," as shown by the transcript. This prayer was as comprehensive in its scope as the one in the trial pleading. Lee v. Boutwell, 44 Tex. 151, cited by appellee in support of his contention that we erred in the statement made.

Appellee further says that we erred in holding that the trial court had the authority to require the plaintiff to elect upon which ground for rescission set forth in his petition he should proceed to trial. By reference to our original opinion it will be noted that we did not so hold. The majority concluded that the petition must be construed as an action to recover damages for fraud and deceit, and not one for rescission of the original contract. Hence the trial court's action in this respect was immaterial. The single cross-assignment of appellee is directed to the trial court's action requiring an election. There is no cross-assignment to the exclusion of any evidence offered by appellee. Apparently the evidence submitted by appellee was the same as it would have been if the trial court had not required an election. Hence appellee's cross-assignment is overruled.

For the reasons given, the motion for rehearing is overruled.

BUCK, J., dissenting as before.