Flores v. Smith

18 S.W. 224, 66 Tex. 115, 1886 Tex. LEXIS 458

Opinion

Robertson, Associate Justice.

By the contract averred, the plaintiffs were bound to take, at the price of $10.00 per head, all of the defendant’s mares. By the contract proven they were bound to take those only which were neither aged nor crippled. The number of animals embraced in the two contracts would be different, and the aggregate sum to be paid would be greater in the one trade than in the other. The two contracts are not the same in substance. For the breach of the one declared upon, no damage was shown, because there was no proof of the number of aged or crippled animals in defendant’s stock, nor of.,their value. The plaintiffs have recovered upon a different contract from that put in suit by them.

The addition made by the proof to the pleaded contract cannot be considered as mere redundancy; it makes the controversy between the parties essentially different from that presented in the petition. The judgment recovered may be a just result of the contract proved, but to be sustained it must be the adjudication of one controversy presented, not by the proof or the pleading, but by both the proof and the pleading. Green. on Ev., secs. 66, 67.

The testimony of the plaintiff, Smith, the only evidence produced of any contract, for the breach of which a recovery could be had, ought to have been excluded. The error committed in admitting it over the defendant’s objection requires a reversal of the judgment. It is accordingly ordered that the judgment be reversed and the cause remanded.

Revebsed and Remanded.

[Opinion delivered April 20, 1886.]