Medley v. Lamb

16 Citing cases

  1. Sanders v. Hickman

    235 S.W. 278 (Tex. Civ. App. 1921)   Cited 12 times

    In an action to recover damages for fraud in exchange of property, proof of values is not available, in the absence of allegations thereof, and the petition must set forth the necessary facts to be considered in measuring damages. Medley v. Lamb, 223 S.W. 1048. Clearly the original petition does not allege the necessary facts.

  2. Morriss-Buick Co. v. Pondrom

    131 Tex. 98 (Tex. 1938)   Cited 44 times

    The exact point raised here was not often noticed, but the facts were such as to require the announcement of a correct rule, in cases of this character. We cite a few of these: Moore v. Beakley, 215 S.W. 957 (Tex. Com. App.); Foster v. Atlir, 215 S.W. 955 (Tex. Com. App.); Cox v. Barton, 212 S.W. 652 (Tex. Com. App.); B. H. Motor Company v. Tucker, 299 S.W. 949; Baden v. Deragowski, 7 S.W.2d 123; Bennett Post v. Henderson, 280 S.W. 622; Bradley v. Fagala, 25 S.W.2d 255; Medley v. Lamb, 223 S.W. 1048; Montgomery v. McCaskill, 189 S.W. 797; Robt. St. John Motor Co. v. Bumpass, 65 S.W.2d 399; Stafford et al. v. Drewry et al., 32 S.W.2d 255; Texarkana Motor Co. v. Brashears, 37 S.W.2d 773. We go no further in this case than to apply the George-Hesse rule to the particular record before us.

  3. Golden v. Odiorne

    112 Tex. 544 (Tex. 1923)   Cited 63 times
    In Golden v. Odiorne, 112 Tex. 544, 249 S.W. 822, 823, Judge McClendon of Section B of the Commission of Appeals, in an opinion approved by the Supreme Court, discussed Rule 62a at some length, and said that: "The evident purpose of rule 62a was to prevent the reversal of trial court judgments for technical and unsubstantial errors, and to cast the burden of showing prejudice upon the party complaining of the erroneous ruling, so far, at least, as it was within his power to do so."

    Facts not alleged, though proven, can not constitute the basis of an adjudication. Cooper v. Loughlin, 75 Tex. 524; Hall v. Jackson, 3 Tex. 305; Denison v. League, 16 Tex. 408 [ 16 Tex. 408]; Mann v. Falcon, 25 Tex. 276; Western Union Tel., Co., v. Smith, 88 Tex. 13; Padgitt Bros. Co., v. Dorsey, 194 S.W. 1127; Kinney v. Tri-State Tel. Co., 201 S.W. 1183; Medley v. Lamb, 223 S.W. 1049; McConnell v. Payne Winfrey, 229 S.W. 355. Walters Baker, for appellee.

  4. Parker v. Cameron

    125 S.W.2d 353 (Tex. Civ. App. 1939)   Cited 2 times

    In these circumstances, it is apparent that the learned trial court tried and submitted the cause to a jury upon an erroneous theory, since in such circumstances (that is, in suits for breach of contracts for the exchange of properties) the measure of damages is the difference between the value of the property given and that actually received in exchange at the time of the trade, where, as here, there was no definite agreement fixing a specific price for each piece of the property dealt with. Patterson v. McMinn, Tex. Civ. App. 152 S.W. 223; Montgomery v. McCaskill, Tex. Civ. App. 189 S.W. 797; Foster v. Atlir, Tex.Com.App., 215 S.W. 955; Mazac v. Connor, Tex. Civ. App. 296 S.W. 641; Roberts v. Zirkel, Tex. Civ. App. 54 S.W. 618; Henderson v. Rowe, Tex. Civ. App. 93 S.W.2d 589; Medley v. Lamb, Tex. Civ. App. 223 S.W. 1048; George v. Hesse, 100 Tex. 44, 93 S.W. 107, 8 L.R.A., N.S., 804, 123 Am.St.Rep. 772, 15 Ann.Cas. 456. It follows from these conclusions, and from the holdings cited, that in the state of the record there was no basis for a judgment in favor of either party; further, it having so definitely appeared that the cause between the parties had not been fully developed, the appealed-from decree must be reversed, and the cause remanded for another trial. Lanford v. Smith, 128 Tex. 373, 99 S.W.2d 593; Williams v. Safety Casualty Co., 129 Tex. 184, 102 S.W.2d 178; Grand International Brotherhood of Locomotive Engineers v. Marshall, 119 S.W.2d 908, par. (9) at page 912.

  5. Morriss-Buick Co. v. Huss

    84 S.W.2d 264 (Tex. Civ. App. 1935)   Cited 3 times

    Quoting from that opinion: "* * * The courts of this state have expressly held that in an action, as here, brought purely for the declared purpose of damages, as redress by a purchaser who has been induced to make the purchase, the purchaser will be awarded in payment the difference between the value of what he parted with and that received in exchange. George v. Hesse, 100 Tex. 44, 93 S.W. 107, 8 L.R.A.(N.S.) 804, 123 Am.St.Rep. 772, 15 Ann.Cas. 456; Greenwood v. Pierce, 58 Tex. 130; Moore v. Beakley (Tex.Com.App.) 215 S.W. 957; Thrasher v. Walsh (Tex. Civ. App.) 228 S.W. 961; Medley v. Lamb (Tex.Civ.App.) 223 S.W. 1048; B. H. Motor Co. v. Tucker (Tex.Civ.App.) 299 S.W. 949."

  6. Texarkana Motor v. Brashears

    37 S.W.2d 773 (Tex. Civ. App. 1931)   Cited 11 times

    And in keeping with this rule the courts of this state have expressly held that in an action, as here, brought purely for the declared purpose of damages, as redress by a purchaser who has been induced to make the purchase, the purchaser will be awarded in payment the difference between the value of what he parted with and that received in exchange. George v. Hess, 100 Tex. 44, 93 S.W. 107, 8 L.R.A. (N.S.) 804, 123 Am.St.Rep. 772, 15 Ann.Cas. 456; Greenwood v. Pierce, 58 Tex. 130; Moore v. Beakley (Tex.Com.App.) 215 S.W. 957; Thrasher. v. Walsh (Tex.Civ.App.) 228 S.W. 961; Medley v. Lamb (Tex.Civ.App.) 223 S.W. 1048; B. H. Motor Co. v. Tucker (Tex.Civ.App.) 299 S.W. 949. Special damages in addition to the above general damages are allowable to the defrauded purchaser only when arising out of special circumstances or exigencies peculiar to the particular case. Routh v. Caron, 64 Tex. 289; Beckwith v. Powers (Tex.Civ.App.) 157 S.W. 177; Spencer v. Womack (Tex.Civ.App.) 274 S.W. 175; and similar cases.

  7. Stafford v. Drewry

    32 S.W.2d 255 (Tex. Civ. App. 1930)   Cited 2 times

    Appellee should have proved the value of the Buick car parted with by him and the Studebaker car received by him, and his damages should have been measured by the difference, if any, between these values, taking into account the obligation for $375. George v. Hesse, 100 Tex. 44, 93 S.W. 107, 8 L.R.A. (N. S.) 804, 123 Am.St.Rep. 772, 15 Ann.Cas. 456; Montgomery v. McCaskil (Tex.Civ.App.) 189 S.W. 797; Linnartz v. Lawrie (Tex.Civ.App.) 192 S.W. 789; Texas Harvester Co. v. Wilson-Whaley Co. (Tex.Civ.App.) 210 S.W. 574; Foster v. Atlir (Tex.Com.App.) 215 S.W. 955; Webb v. Emerson-Brantingham Implement Co. (Tex.Civ.App.) 227 S.W. 499; Medley v. Lamb (Tex.Civ.App.) 223 S.W. 1048."

  8. Baden v. Deragowski

    7 S.W.2d 123 (Tex. Civ. App. 1928)   Cited 4 times

    That measure of damages can be ascertained only by allegation and proof of the value of the respective properties. In this case not only was there a failure to allege the value of the 10 acres of Texas land and 80 acres of Kansas land, but the proof tended to show that no value was placed upon it. The George-Hesse Case is firmly established as laying down the proper and only rule for the ascertainment of damages in the exchange of properties. Medley v. Lamb (Tex.Civ.App.) 223 S.W. 1048; Sanders v. Hickman (Tex.Civ.App.) 235 S.W. 278; Industrial Transp. Co. v. Russell (Tex.Civ.App.) 238 S.W. 1030; Id., 113 Tex. 441, 251 S.W. 1034, 258 S.W. 462, 51 A.L.R. 1; McCrea v. Spruill (Tex.Civ.App.) 248 S.W. 114; Booth v. Coward (Tex.Com.App.) 265 S.W. 1026; Irrigation Co. v. Bellman (Tex.Civ.App.) 272 S.W. 550. It is true that the primary object of this suit is to rescind the contract of exchange and all papers relating thereto and is for damages only in the alternative, but in a case of pure rescission it becomes necessary to allege and prove damages, There must be some injury in such cases in order to obtain equitable relief. The authorities on this subject have been fully reviewed by the Supreme Court in the cited case of Russell v. Industrial Transp. Co., 113 Tex. 441, 251 S.W. 1034, 258 S.W. 462, 51 A.L.R. 1. The rule has not varied but is supported in all cases of rescission.

  9. B. H. Motor Co. v. Tucker

    299 S.W. 949 (Tex. Civ. App. 1927)   Cited 7 times

    ) 189 S.W. 797; Linnartz v. Lawrie (Tex.Civ.App.) 192 S.W. 789; Texas Harvester Co. v. Wilson Whaley Co. (Tex.Civ.App.) 210 S.W. 574; Foster v. Atlir (Tex.Com.App.) 215 S.W. 955; Webb v. Emerson-Brantingham Implement Co. (Tex.Civ.App.) 227 S.W. 499; Medley v. Lamb (Tex.Civ.App.) 223 S.W. 1048. Appellee placed Frank Jones on the witness stand, and was permitted by the court, over the objection of appellant, to prove by said witness that, according to a book which was handed him, the lowest price on a light six Studebaker car of the 1922 model was $219 and the highest price $256; that for the same character of car 1923 model the lowest price was $321 and the highest price $374.

  10. Blohm v. Krueger

    297 S.W. 596 (Tex. Civ. App. 1927)   Cited 11 times

    en for rescission, a general averment and showing that the condition and worth of the business was not in material respects what it had been fraudulently misrepresented to be, and that a justified reliance upon such representation had been the sole inducement of a purchase that would not otherwise have been made, would have entitled the buyer to nullification, without the necessity of pleading and proving specifically just how much and in what detail he had been injured; but, since the contract was alleged to have been performed on both sides and monetary damage alone is sought as the consequence of the the fraud, the opposite party having demanded the particularization both by special exceptions to the pleadings and objections to the sufficiency of the evidence, it was incumbent upon the appellee to both plead and prove the facts necessary to show the amount to which he was entitled. George v. Hesse, 100 Tex. 44, 93 S.W. 107, 8 L.R.A. (N. S.) 804, 123 Am.St.Rep. 772, 15 Ann.Cas. 456; Medley v. Lamb (Tex.Civ.App.) 223 S.W. 1048, and cited authorities. The court charged the jury upon the actual loss alleged to have been sustained: