Gammage v. Alexander (14 Tex. 414, 1855)

Hemphill, Ch. J.

The petition sets forth, in substance, that James S. Alexander, the plaintiff below, (the appellee in this Court,) is a machinist, and manufacturer of gins, mills, &c., and that Thomas T. Gammage, the deceased intestate, now represented by the appellant, and the plaintiff, in the early part of 1851, made a mutual contract, the plaintiff undertaking to •find materials, and make for defendant a grist mill, of the cash value of one hundred and twenty-five dollars ; a cotton gin, of the cash value of one hundred and fifty dollars; and to have the same ready for defendant to send to his Trinity farm, on or by the 15th of Sept. 1851; in consideration of which, defendant undertook to deliver to plaintiff, at his (plaintiff’s) crib, a sufficient quantity of corn, at the rate of 75 cents per bushel, and at corn gathering time, for 1851, as would be sufficient to pay the cash value of the said mill, gin, and fixtures, in the event that the promise or undertaking by the plaintiff was performed ; and it is averred, that in all things the plaintiff fully performed his promise and undertaking. Passing over some allegations, not material to the view which will be taken, the petition further avers, that at corn gathering time, corn was worth one dollar per bushel; that the defendant has disregarded his promise, and has not delivered the said corn, or any part thereof.

Defendant pleaded general denial; setoff; and a tender of the amount due for the grist mill, and that plaintiff refused to receive any part, unless the whole amount, as charged in the account sued upon, was paid.

By an amended petition, the plaintiff reiterates the averment of full performance, on his part, of the agreement; that he furnished materials, and made for defendant a grist mill, of the cash value of one hundred and twenty-five dollars ; a cotton gin, of the value of one hundred and fifty dollars, and fixtures, of the value of twenty-five dollars, and had the same finished before the fifteenth day of September, 1851, which the defendant, at the factory, (mentioned in the original petition,) on the 15th day of September, 1851, received of petitioner in full discharge of the said promise and undertaking by the petitioner; and avers damage of one thousand dollars, from failure of performance on part of defendant.

The jury found for plaintiff three hundred and ninety-six dollars fifty-six cents. The defendant moved for a new trial, on the ground,

1st. That the verdict was contrary to the law and the evidence.

2d. Error in the charge of the Court.

3d. That the damages were excessive.

A new trial was refused, and the defendant appealed, and assigns as error

The refusal of the Court to sustain the motion for a new trial.

Before considering the grounds for reversal, assumed by appellant, we will notice the suggestion of appellee, that there was no error in overruling the motion for a new trial, for the reason that it was not filed in time. The charge of the Court is marked filed on the 30th June, and the motion for a new trial on the 3d July. The entry of verdict and judgment bears no date, and the appellee contends that as there was no entry of adjournment, the presumption is that the finding and ‘ judgment were on the day that the charge was given.

There is some plausibility in the inference; but the defendant cannot be deprived of her rights, on mere presumption, when the fact may be to the contrary. The jury may have had difficulty in deciding. The Court charged more than once. The verdict may not have been returned until a subsequent day. There is no sufficient evidence that the Court ruled on this mere technical ground, against the motion. Mor is there any so conclusive as to require this Court to dismiss the appellant, without a hearing upon the merits.

Having disposed of this suggestion, we will proceed to examine the grounds on which the appellant, in an elaborate argument, claims that this judgment should be reversed.

This action purports to be founded on a contract; and it is a rule of pleading, as old as the science itself, that a contract, when sued upon, must be correctly stated, and if the evidence differ from the statement, the variance is fatal to the action ; in other words the facts constituting the cause of action must be set forth fully and distinctly, and if not proved as laid, the foundation of the action fails, and the plaintiff cannot recover.

The contract, as stated in the petition, original and amended, is to the effect that plaintiff was to furnish the materials and make a mill, gin and fixtures for defendant, at a price agreed upon, for the several articles, to be finished and ready for the defendant to send to his Trinity farm on or by the 15th day of of September, 1851; that they were so made and finished for defendant, before that day ; and that the defendant, on that day, at the factory, received the articles in full discharge of the promise and undertaking of the plaintiff. The evidence does not agree with or support these statements. It is proved satisfactorily, that the plaintiff contracted to make a mill and gin for defendant, but there was no evidence that any price was fixed upon by the parties, as alleged in the petition. True, it is proved by one witness, that the articles were worth, severally, the prices stated in the petition ; but there was no allegation as to to their value by estimation, and there was consequently no foundation for such evidence. The averment was that a certain price had been stipulated. This must be proved as stated. The issue is, whether the parties did or did not agree upon a certain price, and not whether the articles were worth a particular sum. This was the issue offered by the plaintiff, and which the defendant was prepared to controvert, and the plaintiff cannot be permitted to aver one set of facts, and prove another, as their substitute or equivalent.

The plaintiff further alleges that the mill, gin,