Consumers' Lignite Co. v. James

WILLSON, O. J. (after stating the facts as above). [1] 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. [2, 3] The contention that the judgment for $185 as actual damage is excessive is bup-ported by the record, unless appellee was entitled to recover on account of expense incurred by him iu the effort h.e made to secure employment he finally obtained. It appears from Ms 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 bis 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. Tire 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. Footnotes [1] <§=3For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes