Opinion
No. 7140.
July 27, 1927. Rehearing Denied October 5, 1927. Writ of Error Dismissed by Supreme Court December 14, 1927.
Appeal from District Court, San Saba County; J. H. McLean, Judge.
Suit by the People's Trust Company against A. V. Riley. From a judgment for defendant, plaintiff appeals. Affirmed.
J. H. Baker, of San Saba, for appellant.
N.C. Walker, of San Saba, for appellee.
This is an appeal from a judgment in favor of A. V. Riley against the People's Trust Company on his cross-action for damages against said trust company and its surety, the American Surety Company of New York, for wrongfully enjoining the said Riley from cutting and marketing cedar timber on certain lands in San Saba county, Tex. Riley recovered a judgment for $914 against appellant and its surety. The facts appear substantially as follows: On or about March 7, 1923, A. V. Riley purchased from R. R. Low, under written contract of that date, the cedar timber on certain lands in San Saba county then owned by Low, and was given in said contract until September 26, 1925, to cut and remove same. The land was subject to a deed of trust lien executed by former owners thereof to secure a $12,000 note payable to one L. C. Smith, payment of which note had been assumed by Low. This note had been purchased by appellant from Smith, but no transfer of the note or lien was recorded in San Saba county. Upon default in the payment of said note, appellant herein foreclosed its deed of trust lien in April, 1924, and bought in said lands at sheriff's sale, in June, 1924. On July 3, 1924, while A. V. Riley was cutting the timber from said lands, the appellant obtained an injunction restraining him from cutting and removing any such timber thereafter.
In its application for such injunction appellant alleged that it was the owner of said $12,000 note and lien at the time Riley leased or purchased said cedar timber from Low, and that said sale by Low was made without its knowledge or consent, and without notice to it. It appears that no hearing was had upon said temporary injunction until November, 1926, long after the expiration under its terms of Riley's contract with Low. In his cross-action for damages, Riley alleged, amongst other things, that he was an innocent purchaser of said timber; that he had refused to pay the purchase price therefor until Low had obtained the consent of L. C. Smith, the record holder of said note and lien; that Low had for a number of years been the agent of Smith in San Saba county in all such matters, which fact was well known to Riley and his attorney; and that Low had advised Riley's attorney that he had obtained the written consent of Smith to such sale of the cedar; and that appellant was guilty of negligence in not placing of record in San Saba county a transfer to it of said note and lien. He further alleged that, by reason of such wrongful issuance of said injunction, he was prevented from cutting and marketing the remaining cedar timber on said lands and deprived of profits he would have made therefrom in the sum of $1,213.44, for which he sued.
By supplemental petition, appellant, in addition to denial of the facts alleged as a basis for Riley's cross-action, alleged that, at the time of the purchase of the timber, appellee made R. R. Low his agent to investigate the title to said lands, and that said Low knew, or by the use of reasonable diligence could have learned, that appellant, and not Smith, was the then owner of said note and lien, and that such knowledge should have been imputed to Riley.
The case was submitted to a jury on special issues, and, upon their answers thereto and the remission by Riley of $120 of the amount found by the jury, the court rendered judgment in favor of appellee.
Appellant brings four assignments of error. The first complains of the failure of the trial court to submit to the jury the issue of whether or not Low knew, or by the exercise of reasonable diligence at the time of the execution of the contract with Riley could have learned, that appellant was the owner of the $12,000 note in question. We overrule this assignment. Low was not shown as a matter of law to have been made the agent of Riley for any purpose. Appellant pleaded that Low was made Riley's agent, but, even if raised by the evidence, no such issue was submitted to the jury and none requested. And, unless such agency was first established, Low's diligence in procuring information which contradicted the deed records could not have been chargeable to Riley. The evidence shows, on the contrary, that Walker, Riley's attorney, was his agent in the transaction; that Low was owner of the land, a party to the contract, and his interest adverse to that of Riley; and that Riley demanded that he give him clear title to the timber by securing the written consent of the record lienholder. Low testified that he obtained Smith's written consent and that he so notified Walker, who paid him the money for Riley.
The second assignment is also over ruled. It complains of issue No. 1 submitted to the jury. This issue was as follows:
"At the time the transfer of cedar was made by R. R. Low to A. V. Riley, did the said A. V. Riley have notice, or could he, by the exercise of ordinary diligence, have had notice, that the People's Trust Company was the owner of the $12,000 note described in the deed of trust from A. Behrens and wife to M. M. Moss, trustee, for the use of L. C. Smith?"
This issue was properly submitted. It was raised by the pleadings and the evidence on the question of whether Riley was an innocent purchaser for value without notice that appellant owned said note and lien. The jury answered it in the negative, and there was sufficient evidence to sustain that finding.
The third and fourth assignments of error, though not properly preserved nor presented in accordance with the rules, complain of the manner in which the damages claimed were presented to the jury, and that an improper measure of damages was presented. Appellant made no objection to the issues as presented to the jury, nor did it offer any charges in lieu of those submitted.
We think that the measure of damages pleaded was correct, and, though the jury may have arrived at the amount in an improper manner, the proper amount recoverable under the pleadings and the evidence was awarded, and appellant was not injured. Appellee was not required to plead the measure of damages to be applied. The application of a proper measure of damages is within the province of the court, and, where facts are found by the jury, supported by competent evidence on issues to which no objection was made, it will be presumed that the court applied a proper measure of damages in support of his judgment, in the absence of a clear showing to the contrary. Davis v. Standard Rice Co. (Tex.Civ.App.) 293 S.W. 597; Machaelis v. Preddy (Tex.Civ.App.) 295 S.W. 305; Western Union Tel. Co. v. Shults (Tex.Civ.App.) 297 S.W. 275.
It now seems well settled that, where an injunction is wrongfully sued out, the injured party is entitled to recover his damages, including loss of profits, to an established business where such damages can be ascertained with reasonable certainty. Galveston City Ry. Co. v. Miller (Tex.Civ.App.) 38 S.W. 1132; 32 C. J. 468; Am. Construction Co. v. Caswell (Tex.Civ.App.) 141 S.W. 1013; Magnolia Petroleum Co. v. Port Arthur (Tex.Civ.App.) 209 S.W. 811; Miller Surfacing Co. v. Bridgers (Tex.Civ.App.) 269 S.W. 838; Weinman v. De Palmer, 232 U.S. 571, 34 S.Ct. 370, 58 L.Ed. 733; Bagby v. Hodge, 297 S.W. 882, decided by this court.
In response to the issues submitted to them without objection by appellant, the jury, in effect, found that Riley would have made the same profit per car on the 12 cars of cedar timber which they found he was prevented by the injunction from cutting and marketing, as he averaged on the 465 cars he testified that he did market that year. Such was the net result of their finding and the basis of the court's judgment. The testimony showed that, because the ground had been cut over and the usable timber remaining thereon consequently scattered, it would have cost about $10 per car more to have same cut than was usual in good timber. But appellee remitted $120 of the amount found in his favor, or $10 per car on the 12 carloads he lost, and appellant was not injured. We deem it unnecessary to enter into a detailed discussion of the evidence, the issues submitted, and the apparent method by which the jury arrived at their findings. Suffice it to say that we think that the lost profits alleged were shown and were arrived at with reasonable certainty under the uncontroverted evidence.
In a supplemental argument appellant urges as fundamental error that appellee's pleadings of his cross-action were fatally defective, in that they showed no loss to appellee, its contention being that, conceding that the injunction was wrongful, it could only delay the cutting of said timber while the injunction was in force; that appellee was entitled upon hearing to have same dissolved, and, after its dissolution in November, 1926, notwithstanding the expiration of his lease contract meantime, he was entitled to have a reasonable time, not to exceed the length of time he was restrained by the injunction, in which to cut and remove said timber, citing Hodges v. Miller (Tex.Civ.App.) 244 S.W. 634; T. P. Coal Oil Co. v. Patton (Tex.Com.App.) 238 S.W. 202; and Knox v. Brown (Tex.Com.App.) 277 S.W. 619.
These cases announce the rule that, where one wrongfully causes the breach of a contract, particularly where time is of the essence thereof, he cannot take advantage of his own wrong, but that the other party to the contract is entitled to a reasonable additional time to that fixed in the contract in which to perform. We do not understand these cases as holding, however, that the injured party must in any event continue his performance of such contract after its breach by the other party. He is entitled to do so if he chooses, but, appellant having wrongfully prevented Riley's performance within the time fixed in the contract, it is in no position to demand that he proceed to fulfill such contract after the time for its performance had expired. Whether or not he could have minimized his loss by so doing is not raised. By purchase at sheriff's sale appellant came into possession of the land and the timber involved, and immediately repudiated the contract Low made. It cannot thereafter complain that Riley elected to treat said contract at an end and to recover his damages accordingly. Such a construction is not in conflict with the cases cited.
Finding no reversible error in the record the judgment of the trial court is affirmed.
Affirmed.