City of Laredo v. Russell

Walker, P. J. Com. App. This ground of error is well taken and must cause a reversal of the judgment. Under any supposable alternative the discrepancy between the judgment rendered and the cause of action relied upon by the facts and allegations of the plaintiff’s petition is palpable, and must be conclusive of this appeal. If the plaintiff’s petition be considered one seeking a specific performance of the contract, the judgment, being one rendered for damages, is materially variant from such a basis laid for its rendition. On the other hand, if the prayer of the plaintiff’s petition be considered as asking damages for breach of the contract, no facts are alleged in the petition as the basis for such damages. The petition neither alleges in general terms damages resulting to himself by reason of the defendant’s failure to comply with the alleged contract, or of permitting himself to carry out the same; nor does said petition allege any special acts or facts whereby he was damaged by reason of the defendant’s failure to recognize said contract, nor to permit him to carry out the same. It cannot be pretended that the measure of the plaintiff’s damages is regulated by the simple repudiation by the defendant of the contract, or of its refusal to permit the plaintiff to perform and carry out the same as had been agreed upon. Upon the facts stated by the plaintiff, he not having obtained the patent as he had undertaken to do, even though in no default for said failure, might entitle him to merely nominal damages, accordingly as facts not developed by allegation or proof might show the extent of his injury; or such undeveloped facts and allegations might show great injury, damage and loss, entitling him even in supposable cases to an amount of damages equal [402] to, or in excess even of, the value of the land contracted for. The judgment is rendered in pursuance of the plaintiff’s alternative prayer for the value of the land, which is ascertained to amount to $1,250; the allegation of facts, however, on which such prayer is predicated, consist merely in acts of repudiation of the alleged contract by the .defendant, and consequent non-performance thereof by the plaintiff. The petition does not allege, even, that said land has ever yet been patented through the services or agency of any person in behalf of the defendant; nor does the petition show what cost, labor or expense the plaintiff had incurred in the performance or attempted performance of the alleged contract. Unless it is alleged that the land had been in fact patented to the defendant, or that the land could have been patented by the proper action of the city of Laredo by or through its agent or agents, there would not be afforded any ground on which the plaintiff could claim any remuneration from the city under a contract which proposed only to pay him in land in case he did procure the patent. But aside from this consideration, the value of the land agreed to be conveyed under the contract does not afford the measure of damages for the breach of the contract which stipulated for his services, nor is the plaintiff’s right to recover damages based upon any other consideration or right than the ordinary consequence of a breach of the terms of a contract. In a word, the case made by the plaintiff by his pleading alleged no fact or facts which afforded grounds for the recovery of the value of the land in question. It showed no cause of action, unless as a suit for damages for a breach of the contract imputed to the defendant, and no allegation of damages for such breach is made in the petition. The error is a fundamental error which [403] goes to the merits of the plaintiff’s cause of action, and will be considered whether assigned as error or not, where the justice of the case seems to require it. See Salinas v. Wright, 11 Tex., 572; Rankert v. Clow, 16 Tex., 9. [Opinion delivered February 13, 1882.] Facts proved cannot form the basis of judgment unless alleged. Hall v. Jackson, 3 Tex., 305. The allegations must be sufficient on which to form a legal basis on which to predicate the judgment; and the fact that the judgment is taken by default does not dispense with the requirements of the rule that the pleadings and proof must correspond, and that the pleadings must constitute a sufficient legal basis on which to predicate the judgment. Ibid. There is no rule so stringently enforced as that the allegations must be broad enough to let in the proof, and no evidence not supported by the allegations can sustain a verdict. Dennison v. League, 16 Tex., 399; and see Neil v. Newden, 24 Tex., 202; Thompson v. Thompson, 12 Tex., 327; Paul v. Perez, 7 Tex., 338, 345; McKinney v. Fort, 10 Tex., 220, 234; see also Cherry v. Newby, 11 Tex., 457. This view of the case renders it unnecessary to consider the other assignments of error, as the matters to which they relate will not recur upon another trial. We conclude that the judgment ought to be reversed and the cause remanded for further proceedings. Beversed and remanded.