But, assuming that there is doubt of this, it could not help defendant, as the agreement made was specially to deliver the message at Yerington. Postal Telegraph, etc., Co. v. Harriss, 56 Tex.Civ.App. 105, 121 S.W. 358, 122 S.W. 891. It is said that under no circumstances should the court have found that the telegraph company was guilty of gross negligence in the delay in transmission and delivery.
Therefore it was within the discretion of the court as to whether or not it would be withdrawn on appellant's motion to strike. Halsey v. Humble Oil Refining Co. (Tex.Civ.App.) 66 S.W.2d 1082, 1091; Mitchell v. Deane (Tex.Civ.App.) 294 S.W. 347; Missouri Pac. Railway Co. v. Lamothe, 76 Tex. 219, 13 S.W. 194; Postal Telegraph Cable Co. v. Harriss, 56 Tex. Civ. App. 105, 121 S.W. 358, 362, 122 S.W. 891. The twenty-first proposition is to the effect that the trial court erred in refusing to annul and set aside the findings of the jury on the issues of limitation, on the ground that the answers of the jury thereto are so against the great weight and preponderance of the evidence as to be clearly wrong.
In such case the action of the court upon the motion rested in its discretion, and no abuse thereof is apparent. Mo. Pac. Ry. v. Lamothe, 76 Tex. 219, 13 S.W. 194; Montgomery v. Gallas (Tex.Civ.App.) 225 S.W. 557; Fort Worth R. G. Ry. v. Andrews (Tex.Civ.App.) 29 S.W. 920; Hatzfeld v. Walsh, 55 Tex. Civ. App. 573, 120 S.W. 526; Postal Tel. Co. v. Harriss, 56 Tex. Civ. App. 105, 121 S.W. 359, 122 S.W. 891; Knights of Maccabees v. Johnson (Tex.Civ.App.) 143 S.W. 718; Sockwell v. Sockwell (Tex.Civ.App.) 166 S.W. 1188. Affirmed.
We have shown that the defendant's trial amendment separated the plea of forgery from that of fraud in obtaining the deeds, and such pleading was permissible under the rule. Bauman v. Chambers, 91 Tex. 108, 41 S.W. 471; Welden v. Texas, etc. Meat Co., 65 Tex. 487; Postal Telegraph Co. v. Harriss, 56 Tex. Civ. App. 105, 121 S.W. 358, 122 S.W. 891. There is nothing in appellant's second contention, to the effect that the plea of fraud in the procurement of the deeds did not contain a statement of sufficient facts to show fraud.
: The defendant having pleaded specially that the delay in the shipment was caused by unavoidable accident, and the plaintiff not having answered by admitting or denying same, as required by article 1829, Rev.Civ.Stat. 1911, as amended by Acts of 33d Legislature, c. 127, p. 256, same is taken as confessed; and, the plaintiffs having based their right to recover solely upon alleged delays at Metz and Baird, and the uncontradicted testimony being that the delay at Metz was due solely to plaintiffs, and the delay at Baird to an unavoidable accident, plaintiff was not entitled to recover. In causes filed prior to the time this act went into effect, article 1829, Rev.Civ.Stat. 1911, imposed a general denial for plaintiff of special matters of defense pleaded by defendant unless expressly admitted (M., K. T. Ry. Co. v. Gober, 125 S.W. 383; Postal Telegraph Cable Co. v. Harris, 56 Tex. Civ. App. 105, 121 S.W. 358), except article 1828 Rev.Civ.Stat. 1911, provides that: "When the defendant sets up a counterclaim against the plaintiff, the plaintiff may plead thereto under the rules prescribed for the pleadings of defensive matter by the defendant so far as the same may be applicable; and whenever, under such rules, the defendant is required to plead any matter of defense under oath, the plaintiff shall in like manner be required to plead such matters under oath, when relied on by him."
The measure of damages was not the difference in the market value of the cows at Oakwood and the price at which Campbell Evans would have delivered them to appellee under his option with them, as would have been the case had appellee sued Campbell Evans for breach of their contract, but the difference in the price at which said cattle would have been delivered to appellee and the price at which he would have sold them to Martin, had his telegram been promptly delivered. The agent of appellee having been fully informed as to the terms of the proposed sale to Martin, the loss on said transaction by reason of the failure to deliver said telegram must be held to have been within the contemplation of the parties. Telegraph Co. v. Brown, 84 Tex. 54, 19 S.W. 336; Telegraph Co. v. True, 103 S.W. 1180; Telegraph Co. v. Harriss, 121 S.W. 358; Telegraph Co. v. McKenzie, 36 Tex. Civ. App. 178, 81 S.W. 581; Telegraph Co. v. Bowen Co., 84 Tex. 476, 19 S.W. 554; Telegraph Co. v. Carver, 15 Tex. Civ. App. 547, 39 S.W. 1021. In Alamo Mills v. Iron Works, 1 Tex. Civ. App. 683, 22 S.W. 1099, cited by appellant, while speculative damages were disallowed, it was held that damages were recoverable as to the ice which had been contracted to be delivered; also in Ry. Co. v. Hill, 63 Tex. 381, 51 Am.Rep. 642, while it is said that the evidence must indicate the profits with some degree of certainty, it was held that such profits as were naturally incident to the contract and must have been in contemplation of the parties are recoverable as damages for breach of the contract.