Hassell v. Nutt

Wheeler, J. To have constituted the plea of a former judgment effectual as a bar, to a recovery in this case, it must have appeared, that the former judgment pleaded was a judgment upon the merits. (Foster v. Wells, 4 Tex. R. 101; 10 Pet. R. 298.) We think it sufficiently appears upon the face of the proceedings before the Justice, that the judgment was not rendered upon the merits. But it is sufficient to dispose of this ground of defence to the action, that it does not affirmatively appear, that the judgment was rendered upon a trial upon the merits. It was unnecessary for the plaintiff to resort to evidence aliunde, to prove that the judgment was not so rendered. But if it had been necessary, the testimony of the Justice, who tried the case, was admissible for that purpose. ■ The objection that the suit was prematurely brought, we do not think maintainable. If the contract were entire, and incapable of apportionment; or if the plaintiff had brought his suit to recover upon the contract, the compensation which would have been due him for his services for the year, the institution of suit before the expiration of the year, would have been premature. But it has been decided by this Court, that such contracts as the present are not of that character; that tender of performance is not equivalent to performance in such cases, for the purpose of fixing the measure of damages ; and that the true measure is, in general, the damage which the plaintiff has sustained by the breach of the contract. (Meade v. Rutledge, 11 Tex. R. 44.) From this doctrine it results that a right of action accrues immediately upon the breach of the contract, for such damages as have accrued from the breach. This suit was for damages generally for the breach of the contract. There was no error in admitting evidence of the value of the contract. It was proper and necessary to ascertain its value, in order to estimate -the damages occasioned by the breach of it. It is objected that the petition does not allege the damages sought, with sufficient specialty. This might have been a good ground of exception to the petition ; but was not a ground for rejecting the evidence, proposed to prove the damages, claimed by the plaintiff in his petition. [266] It is further objected that there is error in the general charge of the Court. And it does appear that the charge was not in conformity to the law, as settled by this Court in the case of Meade v. Rutledge; which had not been reported, and doubtless was not known to the Court, or to counsel, engaged in the trial of this case. If counsel had asked of the Court a correct charge, which the Court had refused to give; or if the jury had been governed in their verdict by the error in the charge complained of, the judgment, on that account, must have been reversed. But the charge asked by counsel was equally objectionable as that given. It proposed to restrict the plaintiff’s right to recover, to the value of his services during the time he was actually engaged in rendering them ; whereas, he was entitled to recover, not only for the services actually rendered, but the damage he sustained by reason of the defendant’s breach of his contract. And moreover, it appears that the jury did not find for the plaintiff upon the basis of the ruling complained of, that the plaintiff was entitled to recover the amount which would have been due him if he had performed the contract according to its terms; but a less sum, which must have been their estimate of the damages he sustained, by reason of the defendant’s default in refusing to permit him to complete the services contracted for. This was conformable to the case made by the petition. And, though there may have been error in the charge, the finding of the jury appears to have been conformable to law and' the evidence. The defendant, therefore, can have sustained no injury in consequence of the ruling complained of. The evidence proposed by the defendant, which the Oourt excluded, was clearly inadmissible under the pleadings. It did not conduce in any degree, to support the defence set up in the answer, or to establish the truth of the matter pleaded as a justification of the defendant’s act, in dismissing the plaintiff from Ms employment. It was calculated to surprise the plaintiff, by the introduction of matter of a character to prejudice the jury against him ; and which he could not be supposed to be prepared to explain; but which, if he had been apprised the [267] defendant intended to rely upon it "in Ms defence, he might have come prepared to repel or explain satisfactorily. Defendant appears to have acted in a harsh and arbitrary manner, in discharging the plaintiff, and without assigning any reason for Ms . conduct. We think the verdict well warranted by the evidence; and we see no reason to apprehend that any wrong or injustice has been done the defendant. The justice of the case appears to have been attained. And we see no error in the rulings of the Court, which has operated to the injury of the defendant; or which can be assigned by him as a ground for reversing the judgment. It is therefore affirmed. Judgment affirmed.