Anding v. Perkins , 29 Tex. 348 ( 1867 )

Willie, J.

The appellee brought suit in the court below against appellant, to recover damages for breach of warranty upon the sale of a certificate for six hundred and forty acres of land. The petition alleges in substance, that the said Anding, appellant, for the consideration of $60 in cash, sold to Perkins, the appellee, the said certificate, which purported to have been issued on the 10th of January, 1840, by the land commissioners of Jasper county, to Timothy McGregor, and executed a deed of conveyance of the same, dated 26th September, 1849; and that in the said deed of conveyance he entered into covenants of warranty, and, in the sale of the same, held out the idea and representation that the certificate was genuine; that petitioner, believing these representations, purchased the said certificate for the price above stated, on the said 26th September, 1849; that he afterwards carried said certificate to be located upon public lands of Texas, and a survey of the same to be made, and the certificate and field-notes to be returned to the general land office on the 23d of June, 1857; and that the chief clerk of the land office declared and pronounced said certificate to be fraudulent, and indorsed a declaration to that effect upon the same; that by means thereof the said certificate failed to answer the end for which it was purchased, and became of no value; that at the time of the purchase, land certificates of this size were worth only $60, but had since risen in value, so as to be worth $640 at 'the time of filing the petition;' that hy reason of said certificate having proved a forgery, petitioner had experienced much difficulty in saving his said land, and had been compelled to purchase other land scrip and have the same located and surveyed at great expense and trouble; that by means of the facts set forth in the petition plaintiff' had been damaged in the sum of $1,000; for which, and his costs, he prays judgment, &e.

The deed of conveyance, made part of the petition, shows, among other things, that the appellant sold to Perkins, for the consideration of $60, a land certificate, (No. 293, second class,) for six hundred and forty acres, the said certificate issued to Timothy McGregor by the board of land commissioners of Jasper county, and that he warranted and defended the above-described claim and land against himself, his heirs, executors, administrators, and assigns, unto the said Perkins, his heirs and assigns, and against the claim of all persons claiming from or under him, and from all other persons claiming the same.

The defendant filed a general demurrer to the petition, plead to the jurisdiction of the court, alleging that the amount in controversy was less than $100, and also plead a general denial, and that the cause of action accrued at the date of the sale of said certificate, and that more than two, and more than four, years having elapsed since that time, the claim was barred by limitation.

There is no statement of facts, and we have no means of knowing what was proved on the trial of the case. The court charged the jury, in effect, that if they believed from the testimony that the defendant sold to plaintiff a certificate which he knew to be fraudulent, he was liable to the plaintiff upon his warranty for the value of a genuine land certificate, and for vindictive damages for the fraud practiced upon him. That the plaintiff’s cause of action accrued when the certificate was declared by the proper authority to be fraudulent; and that,- if the action was commenced within four years from that time, it was not barred by limitation. There was a verdict for the plaintiff* for $640, and judgment accordingly. A motion for a new trial by defendant, on the grounds that the verdict was against evidence, that the charge of the court was erroneous, that the court erred in not sustaining defendant’s demurrer, and another cause not necessary to state, was overruled, and defendant brings the cause to this court, assigning for error the overruling of his demurrer and of his plea to tlie jurisdiction, the erroneous charge of.the court, and the refusal to grant him a new trial.

There being no statement of facts sent up with the record in this case, we must presume, in support of the judgment, that everything was proved which could legally be proved under the issues. (Henderson v. Trimble, 8 Tex., 174.) Admitting, then, that all the allegations of the plaintiff’s petition were fully sustained by the proof adduced upon the trial, the case against the defendant amounts to nothing more than that of a breach of warranty of soundness or quality upon the sale of a chattel. There is no allegation in the petition that any fraudulent representations were made by defendant at the time of the sale, or that he knew or believed that the land certificate was a forged or fraudulent one. The jury could not, therefore, have arrived at their verdict, unless they either allowed the plaintiff, as his measure of damages, the value, at the time of the commencement of the suit, of a genuine land certificate for six hundred and forty acres of land, or gave him vindictive damages, under the first instruction of the court. In either event the verdict and judgment were wrong, and must be reversed by this court.

Mr. Sedgwick, in his work on the Measure of Damages, after a thorough examination of the authorities, English and American, states the result of the cases to be, that in an action brought on a warranty, the true measure of damages is the difference between the value which the thing sold would have had at the time of the sale, if it had been sound or corresponding to the warranty, and its actual value with the defect; that the price is strong, but not conclusive, evidence of the value at the period first named. (Sedg. on Meas. Dam., 290, 291.)

This court held, in the cases of Anderson v. Duffield, 8 Tex., 237, and Scranton v. Tilley, 16 Tex., 183, that the measure of damages in such cases is the sum paid for the article, with interest from the time it was paid.

It can make no difference, in the case now under consideration, which of the above rules is adopted. The plaintiff was entitled to recover only $60, with interest thereon from the date of the purchase of the land certificate. . That is alleged in the petition to have been the sum paid by him for the certificate, and also as its true value at the time of the purchase.

But the jury may have been misled by the charge of the court, and made up their verdict in part of vindictive damages, as in cases of fraudulent representations. Nothing of this kind is charged against defendant in the petition, and, of course, nothing of the sort could have been proved on the trial. However correct this charge may be as an abstract principle of law, it was inapplicable to this case, and calculated to mislead the jury, and therefore erroneously given.

In the case of Neill v. Newton, 24 Tex., 202, it was said, that it is not the ordinary practice of this court to notice the charge of the court below in the absence of a statement of facts. But where there were no pleadings to support the verdict of the jury, as where the petition does not disclose such facts as would entitle the plaintiff to recover punitory damages, and to the extent awarded by the verdict, the judgment would be reversed upon a charge which authorized the jury to find such damages. Upon the authority of this case, we are authorized to revise the charge given in" the one now under consideration, and hold it erroneous, although no statement of facts is contained in the record.

. That the charge of the court, in reference to the time when the statute of limitation begins to run, in cases like the present, was correct, has already been settled by this court. In Ripley v. Withee (decided at Tyler, in 1863,) [27 Tex., 14] it was held, that fraud, coupled with concealment from the plaintiff’ by defendant of the cause of action, would suspend the running of the statute, or entitle the plaintiff to an action upon the discovery of the fraud, or at such time as he might have done so by the use of reasonable diligence; that this rule applied when the subject-matter was the warranty of a forged land certificate; that the ordinary diligence was when the proper land officer had decided the certificate to be a forgery; that although the vendor may have been ignorant of the forgery, there is, in the nature of the case, a concealment, and therefore a legal fraud. The exception to this charge of the court is therefore not well taken.

The plea to the jurisdiction was also properly overruled. (Tarbox v. Kennon, 3 Tex., 7; Austin v. Jordan, 5 Tex., 130.)

But for the error in the charge of the court, as above stated, and of the jury in rendering a verdict for excessive damages against the appellant, the judgment will be reversed, and the cause

Remanded.

[Moore, Chief Justice, having been of counsel, did not sit in this case.]