
    HEDRICK v. SMITH et al.
    (Court of Civil Appeals of Texas. Austin.
    March 20, 1912.)
    1. Judgment (§ 256) — Verdict — Sufficiency.
    A verdict which merely awarded defendant damages on his plea of reconvention, without disposing of plaintiff’s claim, was insufficient to support a judgment.
    [Ed. Note. — Eor other cases, see Judgment, Cent. Dig. §§ 446-454; Dec. Dig. § 256.]
    2. Judgment (§ 305) — Amendment.
    A judgment which is not supported by a sufficient verdict cannot be amended.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 596, 597; Dec. Dig. § 305.]
    3. Landlord and Tenant (§ 223) — Cancellation of Lease — Effect.
    In a landlord’s action for rent, the tenant could not reconvene for damages for causing her to abandon the premises, where it appeared that the lease was canceled by mutual agreement, without first having the cancellation agreement rescinded for the duress under which she claimed it was executed.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ BSiW&S; Dec. Dig. § 223.]
    4. Damages (§ 40) — Speculative Damages —Profit.
    Damages suffered by a tenant from being compelled to abandon the premises, consisting in loss of profits from keeping boarders which she would have kept, had she not removed, were too uncertain and speculative to be recoverable.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 72-88; Dec. Dig. § 40.]
    5. Trial (§§ 240. 194),— Instructions — Weight of Evidence.
    In a landlord’s action for rent, in which the tenant reconvened for damages from being compelled to abandon the premises, preventing her from keeping boarders therein, an instruction that the number of boarders taken does not control as to whether the house is a private boarding house should have been refused as argumentative and upon the weight of the evidence.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 561, 413, 439-441, 446-454, 456-466; Dec. Dig. §§ 240, 194.]
    Appeal from Williamson County Court; Richard Critz, Judge.
    Action by F. M. Hedrick against Emma Smith and others, in which defendant named reconvened. From a judgment for defendants, plaintiff appeals.
    Reversed and remanded.
    W. A. Barlow, of Taylor, for appellant. C. V. Compton, of Taylor, and Wilcox & Graves, of Georgetown, for appellees.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r indexes
    
   Findings of Fact.

JENKINS, J.

Appellant, on May 1, 1909, entered into a written contract with Mrs. Emma McCann, now MrS. Emma Smith, wherein he leased to her, for the term of two years, a hotel building in Taylor, Tex., at $50 per month. Afterwards, by agreement, appellant put additional improvements on the lot, and the rent was fixed at $55 per month. Appellant became dissatisfied with appellee as a tenant, on account of the alleged mistreatment of his property, and gave her notice 'to'vacate -June 1, 1909. By agreement, the léase contract was canceled, and she notified appellant that she would vacate on July 1, 1909.- Appellant alleges that on account of the Taylor fair, to be held the first week in July, he agreed with appellee that she might remain in the house until after said fair, and pay for the same at the time she occupied the premises at the rate of $55 per month. Appellee alleges that appellant requested her to remain during said time, rent free, for the benefit of his rooming house, which adjoined the premises.

The written contract of lease required the lessee to "keep up all repairs, except in case of fires, cyclones, etc., and return same in as good condition as she received it, less reasonable wear of. same. The appellee remained in possession of the premises to July 13th, when she abandoned the same and rented' another house nearby, in which she continued her business of keeping boarders. Appellant brought this suit in the justice court for rent for the 13 days, at the rate of $55 per month, and for the costs of certain repairs which, he alleged, should have been made by appellee, total $79.62. Appellant sued out a distress warrant, and had the same levied on certain goods belonging to appellee, including a cook stove. Appellee reconvened, asking actual damages occasioned by the detention of said cook stove, $4, exemplary damages, $45, and damages occasioned by plaintiff’s causing defendant to abandon said lease contract, $150. There was a judgment in the justice’s court for appellee for the sum of $12.50, from which appellant appealed to the county court. Upon trial by jury in the county court, the following verdict was returned: “Georgetown, Texas, April 26, 1911. We, the jury, find for the defendant in the following sums as damages: (1) To actual damages, $4; (2) exemplary damages, $45; (3) to damages caused by the plaintiff causing defendant to abandon lease contract, $150. [Signed] J. T. McCarty, Foreman.” Upon which verdict the following judgment was rendered: “Wherefore the court is of the opinion that the defendants should have their judgment on their cross-action in the sum of $199, as provided in the verdict of the jury. Therefore it is ordered, adjudged, and decreed by the court that defendants Mrs. Emma Smith and T. J. Smith do have and recover of and from the plaintiff, F. H. Hedrick, the sum of $199, as provided in the verdict of the jury herein, together with 6 per cent, interest from and after this date, together with all costs in this behalf expended, both in this court and in the lower court, for all of which let execution issue, as provided by law.”

Appellant’s motion for a new trial being overruled, he gave notice of appeal and filed his appeal bond, which was approved by the clerk on May 10, 1911. Statement of facts was duly prepared and filed in accordance with law.

On the 25th day of July, 1911, the same being a day of the next term of said county court, appellees filed in said court their motion to amend the judgment, which motion was resisted by appellant on the grounds,first, that, the cause having been appealed, the county court had no jurisdiction; and, second, that there was nothing in the record from which said judgment could be amended, and that said judgment was in fact the judgment rendered by the court, and the only proper judgment that could have been rendered on the verdict of the jury. Appellant’s exceptions were overruled, and said judgment was by the court amended by including therein the following: “Therefore it is ordered, adjudged, and decreed by the court that the plaintiff, E. M. Hedrick, take nothing as against Mrs. Emma Smith and T. J. Smith in this case.”

Opinion.

1. The judgment of the court, as originally rendered, was insufficient, in that it did not dispose of all of the issues; that is to say, it did not determine whether or not the plaintiff was entitled to judgment upon his cause of action against defendants. Bank v. Harris et al., 138 S. W. 1162; Sapp v. Anderson, 135 S. W. 1068.

2. The court erred in allowing said judgment to be amended, for the reason that the verdict of the jury was insufficient as a basis for any judgment, except that which was rendered. This being true, it is not necessary for us to decide as to the power of the court to amend its judgment at a subsequent term, where appeal has been taken.

3. We sustain appellant’s fourth assignment, which is as follows: “The court erred in overruling plaintiff’s special exception No. 1, addressed to-defendants’ cross-action, and in which plaintiff excepted to all that part of defendants’ plea for damages on their cross-action as to the alleged acts of plaintiff occurring before the issuance of said distress warrant, for the reason that such were immaterial, irrelevant, not proper elements of damage, constituted a tort, were unliqui-dated damages, if any, and could not be pleaded in answer to a suit for rents, based upon a written contract.”

We likewise sustain the tenth assignment of error, complaining of the charge of the court, as follows: “You are instructed that on the element of damages pleaded by defendant, by reason of the alleged compelling of defendant to abandon her business in said house, that the measure of damages, if any you find there was, is what defendant would have made, had she continued in such business, less what she did actually make after she moved, provided she exerted reasonable diligence to procure other quarters for the conducting of such business.”

The evidence shows that the lease contract was canceled by mutual agreement. Appellee alleges that she was induced to cancel said contract by the conduct of appellant in annoying her and threatening to have her children arrested for breaking window lights and otherwise injuring his property; and that he did in fact have one of her boys arrested on said charge. If appellant was unlawfully interfering with appellee’s affairs, she might have prevented the same by injunction, or might have prosecuted him criminally, had he violated the law. She does not in this case seek to annul the rescission of the contract upon her part by reason of threats or duress, but seeks to recover damages for profits which, she alleges, she would have made, had she not canceled said lease contract. We do not think her reasons for canceling said contract could be inquired into in this case, and, having voluntarily canceled said contract, she is not entitled to. any profits which she might have made but for the cancellation of the same. In addition to this, the profits alleged and attempted to be proven were too vague, uncertain, and speculative to be recoverable in an action at law.

4. Paragraph 4 of the court’s charge, “that the number of boarders taken does not control as to whether the house is a private boarding house,” was argumentative and upon the weight of the evidence, and therefore should not have been given. The remaining assignments are overruled.

For the reasons herein stated, the judgment in this ease is reversed and remanded.

Reversed and remanded.  