
    Hillebrant v. Brewer and Wife.
    At common law delivery is essential to the validity of a parol gift. Actual manual delivery, however, is not always necessary, but in certain cases the delivery may be symbolical or constructive. There may be circumstances, loo, under which a gift m.iy be complete and valid as between donor and donee without delivery; as where the donee of personal property was under the age of twenty-one years, and lived with his father, the donor, the possession of the gift by the donor was held to be consistent with the donee’s right. (Notes.)
    Where a father procured a brand to be recorded in the name of his child and branded certain cattle with the brand so recorded, with the avowed object of making a gift of the cattle to the child: Held, i hat Micro was a sufficient delivery to consummate the gift.
    It has been he'd that a gift by deed or writing is tantamount as between donor and donee to a gift by actual delivery.
    Where property only is in question, the value of the article, as nearly as it can be ascertained, furnishes a rule of damagos from which the jury cannot depart. In such a ease the value of the property must bo proved, or some data must be furnished by which its value can be ascertained; else the damages must be merely nominal.
    Where a motion for a new trial was made on the ground that the verdict was contrary to law and evidence, and the motion was overruled: Held, That although the damages were excessive, yet, as that ground had not been specified in the motion for a new trial, the judgment would not be reversed for that cause.
    Where infancy was relied on to take a case out of the limitation of two years, the evidence was ‘‘that in 18-12 the plaintiff was a small girl,” ‘’that two years ago” — that is, two years before the trial in the fall of 1850 — “she was upwards of Cvvonty-one years of nge,” the suit having been commenced on ihe27Mi of October, 1848: Held, That the evidence was insufficient to sustain the verdict on appeal.
    Where the ground specified in a motion for a new trial was that the verdict was contrary to law and evidence, and the assignment of error was that the court erred in overruling the motion for a new trial: Held, That the plaintiff in error might show that the evidence did not sustain the allegation of infancy, which was relied on to take the case out of the statute of limitations; and the judgment was reversed on that ground.
    Depositions which are not referred to in nor made a part of the statement of facts will not be considered by the Supreme Court.
    Error from Jefferson. This suit was brought by the defendants in error against tlie plaintiff'in error to recover the value of certain cattle, alleged to lie the property of the plaintiff' below, Caroline, acquired before her intermarriage with lier eoplaintiff, William Brewer, by gift from her father, the defendant below, and to have been sold and converted by him to His own use. The original petition ivas filed on tlie 6th day of April, 1850. The statute of limitations was pleaded, and the plaintiffs thereupon amended their petition, alleging that tlie plaintiff, Caroline, until within less than two years next preceding tlie commencement of the suit, viz, until the 27th day of October, 1848, was an infant under tlie age of twenty-one years.
    Accompanying tlie petition was an account specifying the number of cattle charged to have been sold by tlie defendant, when sold, and their value. Tlie alleged indebtedness, on all' the items in tlie account, except two, amounting to the aggregate sum of three hundred and sixteen dollars, was charged as having accrued more than two years before the commencement of the suit.
    At the Fall Term, 1850, ¡here was a verdict for the plaintiffs for five hundred and eighty-six dollars and fifty cents. The defendant moved for a new trial upon the ground that tlie verdict was contrary to law and evidence. The court overruled the. motion and gave judgment upon the verdict; and tlie defendant prosecuted a writ of error.
    The facts were that in tlie year 1840 the defendant caused to be recorded in the county of Jefferson a brand, in the name of His daughter, Caroline, one of the plaintiffs; that lie afterwards sold cattle in that brand, and said (hat he owed his daughter throe or four hundred dollars for cattle of hors he had sold; that since tlie year 18-10 lie had sold thirty head of cattle in that brand; that the, plaintiff, Caroline, was “upwards of twenty-one years of age two years ago; ” that in 18-12 the plaintiff was “a small girl; ” that at the birth of each of his children the defendant had branded some cattle for them, and had their brand recorded, and that he branded tlie increase in the same brand ; that he had had jiossession of tlie cattle since the year 1842, aud had sold and disposed of them in like manner as of his own ; and that in 1844 be bad branded a number of cattle in the brand of bis daughter Caroline..-,
    The errors assigned were—
    1st. Tlie ruling of the court upon the exceptions to plaintiff’s petition.
    2d. The overruling of a motion for a new trial.
    
      J. B. Jones, and H. N. fy M. M. Potter. for plaintiff in error.
    The material error, assigned and that upon which this plaintiff mainly relies, is that the court below erred in overruling- the motion for a new trial, tlie ground of which was that the verdict of the jury was contrary to the law and the evidence. The cause of action of the plaintiffs below was based upon a pretended g'ft of I he cattle in controversy from the plaintiff in error lo tlie defendant in error, Caroline lire wcr. The proof does not show t hat there was ever such a gift, unless it is to bo presumed from the custom of tlie plaintiff in error, mentioned in the statement of facts, which was (o record brands in the. names of eaeli of ins children at their respective births, or from his having liad a brand recorded in the name of the defendant Caroline in the year 18-10. and using it afterwards in branding-ins own cattle. But if there was a gift, we say it was by parol and not accompanied with a delivery of the possession of the cattle in dispute to tlie defendant Caroline. The defendants in error rely upon the record of the brand in 1840 to show that this was not a parol gift, anil they urged that such record was a delivery of the possession of the cattle to the defendant Caroline. By reference Lo the statutes of Texas it will be found that In 1840 (here was no Jaw authorizing the record of brands or the use of such record for any purpose; and aa all records derive their efficacy from statutory provisions, it follows that tlie defendants cannot use this record lo establish any fact necessary to their success. And besides, tlie proof is clear and positive that the plaintiff had exercised complete control and dominion of the cattle since tlie year 1842, and that lie had never parted with the possession of said cattle except when they were disposed of for his own individual benefit. In Chevallier v. Wilson and "Wife (1 Tex. R., 161) this court so expressly declare that a delivery of tlie possession is essential to the validity- of a parol gift of chattels that we deem it unnecessary to cite authorities to that point.
    The defendant below, in addition to the general issue, pleaded the statute of limitations. The suit of the plaintiffs below was based upon an account; and such actions are barred, if not commenced within two years from their accrual. By reference to tlie account filed by them it will be. seen that their action was barred, except as to the last two items of account; and they failed to show themselves within the statute as to those two items. The plea of (he. statute deprives them of all tlie benefit of the admission made by the plaiutiff that lie owed tiie defendant Caroline three or four hundred dollars, unless they show that admission was made within two years before tlie commencement of their suit; and the statement of facts does not show any such proof. 'But if tlie defendants are within the statute, so far as concerns the admission of Hillebrant that lie owed tlie defendant Caroline three or four hundred dollars, still that admission of indebtedness did not warrant the 'jury to find a verdict for over five hundred and eighty-six dollars; consequently tlie verdict of the jury was excessive.
    J. W, Henderson, for defendants in error.
    Tlie second ground of error is that tiie court erred in not granting a new trial. When a controversy consists chiefly of facts, the objections to a verdict must be very cogent to induce a court'to grant a new trial. (Briscoe v. Bronangh, 1 Tex. R., 326.) It must clearly appear that tlie evidence will not support tlie verdict. (Briscoe v. Bronaugh, 1 Tex. R., 326.)
    After verdict of twelve men, judgment shall not bo stayed or reversed for the want of form. (Stat. of 1846, sec. 104, p. 392.)
    
      Where there arc several counts, and certain damages arc given, the verdict shall be good, notwithstanding one or more of the several counts are bad. (Stat. of 1846, sec. 103, p. 392.)
    The declarations of the donor, accompanied with the fact of recording the brand by the donor, would support a gift without proof of delivery. Any act of tiie donor from which it may be inferred by the jury that there was a delivery is all that is required. (Graugiac u. Arden, 10 Johns., 297; 1 Kelly B., 601,- 1IST. & NcC. B., 223, 224.)
   Wheeler, J.

For the plaintiff in error it is insisted—

1st. That t._j evidence does not show title in the plaintiff.

2d. That it til cl not authorize a verdict for the amount found by the .jury, ami that the verdict is excessive; and

3d. That it does not support the averment in the petition that the plaintiff was an infant and within tiie exception of tiie statute of limitations in favor of infants.

1. The evidence relied on by the plaintiffs to establish their title by gift to the property in question consisted of the acts and declarations of the donor. These were numerous and continuous, and were, we think, of a character to warrant the jury in finding tiie fact of a.gift. But it is insisted that the gift was incomplete and ineffectual for tiie waiit of a delivery of tiie possession of tiie property by tiie donor to the donee ; and we,'are referred to the decision of this court in t.lie case, of Clievallier v. Wilson and Wife, (1 Tex. R., 161.) There can be no doubt that by the, common law delivery of possession is essential to the validity of a parol gift, and so this court held in the case cited. The necessity of a delivery, says Chancellor Kent, lias been maintained in every period of the English law. (2 Kent Com.. 438; 2 Bl. Com., 441; 10 Johns. R., 292.)

But what will amount to a delivery must depend upon the nature of-tiie thing and the circumstances of tiie case. Aetna], manual delivery is not in all cases, necessary. Where I lie tiling- is incapable of actual delivery, or where tiie situation of the parties or tiie circumstances of the case will not admit of it, it may be symbolical or constructive. (2 Kent Com., 439; 7 S. & M. R., 428 ; 9 Ala. R., 391.) There may be circumstances under which a gift may be complete and valid, as between donor and donee, without delivery, and the possession of the former will not be inconsistent with the right of the latter.

Thus, where t.lie, donee of personal property was under the age of twenty-one years, and lived with his father, tiie donor, the possession by the donor of the gift was held to be consistent with the donee’s right. (1 Ala. R., 52.)

In tiie case of Howard v. Williams the court of appeals of South Carolina held that a gift by a father (o his daughter of an inconsiderable, part of liis property, made at a time when he was solvent, will be supported against subsequent creditors even without notice, although tiie father retain possession if the daughter were a minor and continued to reside with him, and the gift were bona fide, and free from all trick and contrivance to defeat creditors. (1 Bail. R., 575.) A fortiori the gift would be valid as between donor and donee.

Upon the principle of these authorities tiie gift in the present case ought, perhaps, to he supported without a delivery or any equivalent act if it liad been made clearly to appear in evidence tiiat the donee was a minor, living with tier father, the donor. Such probably was the fact, but it does not so appear conclusively from the evidence embodied in the record.

The branding and recording of the brand, however, used as evidence of ownership, considered in reference to tiie diameter of the property and the circumstances of the case, was, it is conceived, such a symbolical or constructive delivery in respect to this property as was equivalent to actnal delivery. These acts afforded, perhaps, as satisfactory evidence of the Intent ion of the donor to part with the dominion and ownership of tiie properly as the nature of the case would admit of. It is analogous to a gift by deed or writing, which, as between donor and donee, has been held tantamount to a delivery. (9 Port. R., 650; 2 Yerg. R.. 582 ; 2 B. & Aid. R., 351.) On I he. qnest ion of title; therefore, the evidence was, we think, sufficient to authorize the verdict.

2. Did the evidence authorize a verdict for the amount found by tlie jury, or does the verdict give excessive damages?

There are in this case no circumstances of aggravation to authorize the giving of vindictive or exemplary damages. It is a case in which the measure of damages is compensation for tlie actual pecuniary loss directly sustained. And that is to be estimated by the value of the property. Bat there is no evidence of any value, except the admission of the defendant that he owed his daughter three or four hundred dollars for her cattle sold by him. But this admission did not authorize a verdict for nearly six hundred dolíais. Where tlie invasion of a right is established, the law infers some damage to the plain till, and if no evidence is given of any particular amount of loss, it awards what is termed nominal damages, which is some very smail amount. Where properly is in question, the value of the article, as nearly as it can be ascertained, furnishes a rule from which the jury are not at liberiy to depart. The measure of damages in this case is a question of law, and'where there is a legal ride for the measurement of damages, the jury must follow it. (8 Wend. R., 505; 2 N. & McC. R., 516; 3 McC., 498; 4 Id., 156; Sedg. on Dam., 30.)

It was incumbent on tlie plaintiff to prove tlie value of the property, or to furnish some data by which its value might be ascertained. The admission of the defendant was sufficient to authorize a verdict for the amount admit led to be due. But the verdict was for a much larger amount, and the evidence furnishes no data by which that amount could have been arrived at by any rule or principle, of law by which it was competent for the jury to estimate, the damages. The objection to the. verdict in this particular, however, is thin it, gives excessive damages, and chis constituted a distinct and independent ground for a now trial. But, it was not made a ground by a written specification accompanying the motion, as the statute requires. (Hart. Dig., art. 700.) It, cannot, therefore, be now insisted on as a ground for reversing (lie judgment. But it lias been deemed deserving of notice because presented in argument, and to avoid its being made a question in tlie event of another appeal.

3. The remaining question is as to the effect of the statute of limitations upon the. plaintiff’s right to recover. All the items in the account sued oil to which (lie evidence relates, except two amounting to the aggregate, sum of three hundred and sixteen dollars, appear upon the face of the' Recount to have been barred by the. statute at the commencement of the suit. The statute was pleaded, and to take tlie case out of its operation the plaintiffs alleged in their amended petition, in effect, that, the, plaintiff Caroline was an'infant under the age of twenty-one years, and that she arrived at the age of majority on the 27tli day of October, 1S48, less than two years next before the commencement of filis suit, and comes, therefore, within the except ion contained in tlie eleventh section of the statute, saving lire right of infants. This av"i-me.nt, it was incumbent on the. plaintiffs to prove, yet the only evidence in its support is that in 1842 the plaintiff Caroline was “a smail girl,” that “two years ago” — that is, two years before the trial in the fall of 1S50 — she was “upwards of twenty-one years of age.”

This evidence cannot be held to amount to proof that this plaintiff arrived at tlie age of twenty-one years on the 27tli day of October, 1848, as alleged in the petition, or at any time within two years next, before the commencement of tlie suit. Tiro plaintiffs, therefore, have failed to make out in evidence a case within tlie exception of the statute.

A question has arisen, not, made at the, liar, whether this insufficiency of proof ought not, to have been specially assigned as error, and whether the 'objection ought to avail the defendant under the assignment in this ease. The court are of the opinion (to which I assent with some hesitancy) that under the decisions and practice of the court the objection is available'.

Note 8.—Hillard v. Frantz, 21 T., 192; McCulloch v. Renn, 28 T., 793; Manly v. Culver, 20 T., 143.

The conclusion therefore is that, the plaintiffs having failed to show themselves within the exception of the statute of limitations in favor of infants, and their claim, except as to three hundred and sixteen dollars, appealing to have been barred by the statute, the verdict for the amount found by the jury is contrary to the evidence.

There are a number of depositions copied into the record, but they are not referred to in or made a part of the statement oE facts. As that is certified as containing all the evidence in the case, we are not at liberty to consider these depositions as constituting any part of the evidence given on the trial. Tiie case must he tried here upon what is properly and legally the record.

We are of opinion that the judgment be reversed and the cause remanded for further proceedings.

Judgment reversed.  