Bradford v. Mann

Quinan, J. I. The plaintiff in error insists that in consequence of the omission to state the sum of money paid by Mann to Bradford for the stock of cattle, in the petition, it does not disclose a consideration for the sale; that it was therefore a nudum pactum, “ which cannot inflict an injury capable of legal redress.” The petition does allege that the sale was for a valuable consideration in coin, and this, we think, was sufficient. If the defendant needed a more specific allegation of the amount, he should have excepted to the sufficiency of the petition, and not having done so, this objection, if the petition could be held defective on that account, must be considered waived, and is cured by verdict. DeWitt v. Miller, 9 Tex., 245; Ch. Pl., 712. II. The second assignment of error is not sustained by the record. It does not appear that there was any application for a continuance made, and there is no order overruling a motion for a new trial. [228] [Opinion delivered May 10, 1880.] III. The third assignment cannot be sustained. There is in the record no statement of facts or bill of exceptions. We must presume that such a state of facts was proven as justified the charge given. Cannovan v. Thompson, 12 Tex., 248. And the assignment is altogether vague and indefinite. IY. The fourth assignment, so far as it relates to the supposed defective statement of the consideration in the petition, need not be further noticed. And the allegations of the petition we think were sufficient to support the verdict and judgment of the court. The petition set up a transfer for a valuable consideration of the Bradford stock and the claims belonging to it with it, and especially one for over one hun. dred head of cattle and seventy beeves, worth $14 a head, against Gholson; that Bradford so wilfully misrepresented the fact to be; that relying upon this representation Mann purchased, and paid a large price for the stock; that the claim against Gholson turned out to be one for only seven beeves and seventeen head of cattle, and that he suffered a loss of sixty-four head of beeves of the value of $896, and damages $1,000. The verdict of the jury was for $896 and $131.41 interest. The judgment rendered is for $1,027.41. The plaintiff alleged damages, and would upon proof of the delinquency or fraudulent representations of defendant be entitled to recover them, and we must assume that the necessary proof was made. Though there was no claim for interest eo nomine in the petition, yet the verdict of the jury calling for interest, when damages was meant, or when interest was given as damages, is no cause for the reversal of the judgment. And the allowance of interest does not seem to have been an improper mode of computing damages in the circumstances of this case. Close v. Fields, 13 Tex., 627; Fowler v. Davenport, 21 Tex., 634; Anderson v. Duffield, 8 Tex., 237; Calvit v. McFadden, 13 Tex., 325. We are of opinion that there is no error in the judgment, and that it ought to be affirmed, and so award. Affiemed.