Lovett v. Paschen , 241 S.W. 685 ( 1922 )

I do not concur with the disposition made of this case by the majority of the court, because I do not think the opinion gives a correct analysis of the contract. I do not think the opinion has properly construed the pleadings on the subject of the failure of Closner Sprague to furnish water, nor as to the effect given as to their dismissal from the suit as in any way constituting a waiver of the defense, and that the breach as a covenant running with the land cannot be asserted as a failure of consideration, in whole or in part, against the purchase money of the land, agreed to be irrigated. Pope v. Hays, 19 Tex. 375; Gutta Percha v. City of Cleburne, 102 Tex. 36, 112 S.W. 1047. The abandonment of the claim to recover a judgment for damages against Closner Sprague was in no sense an abandonment of the plea of failure of consideration. He had both remedies; could not enforce both. While a recovery of damages for a breach might not have been full and adequate, he would not be permitted to take his damages that perhaps would fully compensate, and still cancel the note at the same time, nor vice versa. In other words, a failure of consideration is invoked for defensive purposes; whereas the plea for damages is offensive.

The appellee was not buying nonirrigable land. I am not considering here the court's ruling in instructing a verdict for Lovett or appellee's cross-assignment thereon, nor the assignment that the testimony did not support the verdict of the jury on the question raised of agency. This should have been discussed in view of the opinion. Holland v. Nimitz (Tex. Sup.) 239 S.W. 185. Again, I do not think the contract in the Closner Sprague v. Acker Case so generously approved in the opinion of the majority of the court is identical with the one here; besides, the judgment in that case was reversed.

The rule now pronounced by the Commission of Appeals, and approved so generously by Chief Justice Phillips in Wisdom v. C. R. I. Ry. Co., 231 S.W. 345, and lately in Turley v. Campbell, 239 S.W. 603, just decided is that, if the opinion or record shows any testimony supporting the judgment of the trial court, the Court of Civil Appeals cannot reverse and render, but must remand. If the court says there is no testimony supporting it, then it became a question for the Supreme Court, as a matter of law, to say whether under such state of the record the Court of Civil Appeals correctly reversed and rendered.

Unquestionably in the majority opinion it has not been contended or said that there was no evidence to support the judgment. Looking at the opinion itself, this case should either be affirmed or reversed and remanded.