Hunt v. Reilly , 50 Tex. 99 ( 1878 )

Gould, Associate Justice.

This suit was brought by Reilly to recover of Hunt and Manning damages for an alleged breach of an agreement, the legal effect of which agreement was a partnership between the three, in the publication of a newspaper, for twelve months from May 22, 1871, Hunt and Manning, on their part, agreeing to furnish everything in the way of materials; Reilly to do or furnish at his own expense all the work; the proceeds, after paying a book-keeper, to be equally divided between Reilly on the one side and Hunt and Manning on the other. The publication was carried on under the agreement from May 22 to July 18, 1871, when the press and materials were seized and placed in the hands of a receiver, at the suit of one Whit-more, instituted against Hunt and Manning and one Woods, but not against Reilly, the defendants in said suit being enjoined from further use of said press and materials.

Appellants claim that the legal effect of the injunction was to dissolve the partnership; that they were not liable to plaintiff for any damages resulting from this forced dissolution ; and that his only remedy was to have a settlement of the partnership. The answer to this claim is, that, having entered into the agreement, the appellants are responsible in damages, and are not excused by the fact that a third party procured against them an injunction which prevented them from doing what they had contracted to do; and that for a violation of partnership articles an action for damages may be maintained without going into a settlement of the partnership accounts. (Story on Part., sec. 281; Coll, on Part., secs. 245, 246.)

But even if the defendants were entitled to have an account stated of the partnership affairs, they failed to take any steps for the enforcement of their right in time. Their application for the appointment of an auditor was made when the case was called for trial, after the suit had been pending over two years, and was unsupported by any answer or evidence showing the necessity therefor. Under these circumstances the court did not err in overruling the application.

The plaintiff claimed and the court allowed damages for profits lost by the breach of the agreement. The ruling of the court on this point is supported by authority, and was, we think, correct. (1 Pars, on Cont., 6th ed., p. 194.)

It appears by bill of exceptions that the court allowed the plaintiff’s own depositions to be read, over the objection of defendants, giving his estimate or opinion of the amount of profits thus lost to him. In this, we think, the court erred. (1 Greenl. on Ev., sec. 440; Giles v. O’Toole, 4 Barb., 264.) The case seems to come within the general rule which excludes mere opinions as evidence.

But this case was tried without a jury, and the court, in signing the bill of exceptions to the admission of this evidence, says that, in estimating the profits lost, the testimony of witness A. E. Hunt was taken as the basis, referring to the written opinion delivered by the court and appearing in the record, from which it appears that the court allowed plaintiff $150 per month as profits lost. Beyond the evidence given by plaintiff himself and by Hunt, there is no other evidence tending to support the conclusion as to amount of profits reached by the court. The purport of Hunt’s testimony is, that from May 22 to July 18 he was the book-keeper and collector of the concern; that during that period there was a balance of unpaid accounts, the plaintiff’s half of which amounted to $308; that he could not state what the cash receipts were, but they were small. If this $308 were all cash, and the evidence is that some, at least, of it was uncollectible, it would not justify the conclusion that the plaintiff’s profits during that period were $150 per month. The plaintiff himself testified to monthly expenses for one printer, two apprentices, and extra help, not counting his own work, amounting to $100 per month. Certainly these expenses must be deducted from the plaintiff’s share of the proceeds in arriving at his profits, and, after making that deduction, it is impossible to arrive at $150 per month as his profits from Hunt’s testimony, or, indeed, from any other testimony in the case, except the opinion or estimate of the plaintiff. Whether we look to the opinion of the court or confine ourselves to the statement of facts, we, in each case, reach the conclusion that the judgment is excessive. If, however, the $150 per month allowed by the court as profits be reduced one-half, we have $75; which is the amount Reilly testifies he would have earned monthly as a printer. During four months he was unable to procure employment, and was damaged to the extent of the wages which he was prevented from earning, making $300. The court allowed him, also, under the evidence, $150 for expenses in procuring other employment. These sums, with interest, would amount to $606, and for that sum we think that the evidence, legally admitted, authorized a judgment. As a jury was waived and the cause submitted to the court, we might render here such judgment as the court below should have rendered. But if the plaintiff’s testimony as to profits had been excluded, he might, perhaps, have adduced other evidence as to their amount. Under the. circumstances, we think him still entitled to that opportunity, if he desires it. The judgment of the court will accordingly be withheld, to allow appellee to enter, if he sees fit to do so, a remittitur of $404, with interest from September 20,1876, the date of the judgment. If such remittitur be entered, the judgment will be reversed and reformed in accordance with this opinion, the costs of this court being adjudged against appellee. If no such remittitur be entered, the judgment will be reversed and the cause remanded. (See Bracken v. Neill, 15 Tex., 115.)

[The remittitur was filed.]

Reversed and reformed.

[Justice Bonner did not sit in this case.]