Appellee sued appellants to rescind a contract for the purchase of a piano and to recover the purchase money already paid, alleging that the contract was procured by fraud. He alleged that he had paid on the contract $649.33, and prayed judgment for the same and for $500 exemplary damages, but did not ask for interest on the amount so paid. The court instructed the jury, if they found for the plaintiff on the issue of rescission, to also find for him the amount paid by him under the contract, with interest at the legal rate *Page 260 from the first day of January after each payment. The body of the verdict is in these words: "We, the jury, find for the plaintiff on the issue of cancellation and for the payments made by the plaintiff, principal and interest, the sum of eight hundred and eighty-one 13-100 dollars, and we also find for punitory damages in the sum of one dollar."
The court first rendered judgment for the plaintiff in strict accordance with the verdict, but at the time it overruled appellants' motion for a new trial, which complained of the verdict as being in excess of the amount claimed in the petition, the court reformed the judgment as to the amount of the recovery, as follows: "It is further ordered by the court that the judgment in this cause be and the same is hereby reformed and rendered for plaintiff for the sum of $649.33, being the amount of the principal demand of said plaintiff without interest, and the further sum of $1 punitory damages, in all the sum of $650.33, so that said judgment shall hereafter read as follows," etc.
This action of the court forms the subject of complaint in this court, and we think the complaint must be sustained, and the judgment reversed. Not having sought to recover interest on the payments made, appellee was not entitled to do so; and, in our opinion, this error was not cured by the action of the court in reforming the judgment. We do not think there is any merit in the contention that the court could not reform or correct its judgment without being requested so to do by one of the parties, but we concur in the proposition that, when a jury intervenes, the verdict must form the basis of the judgment. And, when the verdict awards to the plaintiff something that he has not asked for in his petition, unless the thing or amount so recovered is designated and identified by the verdict, the error cannot be cured, either by voluntary remission by the plaintiff or by reformation by the court.
This is so because the extent of the injury cannot be known; and, until it is known, it cannot be remedied, except by annulling the entire verdict. The verdict in this case awards to the plaintiff $881.13 for the payments made by him, and for interest thereon; but it does not designate how much is allowed as principal nor how much as interest. What warrant is there in the verdict for the assumption that the jury intended $649.33 of the $881.13 awarded to appellee, as principal, and the remainder as interest? There is nothing whatever in the verdict to indicate that any particular portion was intended as either principal or interest; and such a conclusion cannot be reached, unless something apart from, and not referred to, in the verdict, is considered. The amount of the principal is alleged in appellee's petition to be $649.33; but the verdict does not refer to the petition,and it is not to be supposed that the jury intended to allow him that amount as principal, merely because he claimed it in his petition. There is nothing in the charges given to the jury, nor in any other part of the record as it then existed, that will aid in determining what amount of the $881.13 the jury intended as principal, and what amount as interest; and that it was not *Page 261 permissible to look to the evidence for that purpose was held in Mays v. Lewis, 4 Tex. 38, and Smith v. Tucker,25 Tex. 594.
Those cases have been followed by this court in Bennett v. Seabright, 32 S.W. Rep., 1048. In Smith v. Tucker, supra, the verdict found for the plaintiff "the land described in the petition, less seven hundred sixty-seven and a half acres as described in the deed read in evidence from D.F. Hooper to C.M. Adams." It was held that this verdict was too indefinite, and could not be aided by looking to the deed referred to and there ascertaining the particular 767 1/2 acres to be excluded, thereby rendering certain the land to be recovered. In the present case the uncertainty in the verdict, as to how much was intended as principal and how much was interest, is greater than was the uncertainty in the verdict in Smith v. Tucker, because there the verdict referred to a document in evidence, which, if considered, would render the verdict certain; here, the verdict refers to nothing whatever that could assist in making an apportionment between principal and interest.
We therefore hold that, as the plaintiff, under his pleadings, was not entitled to recover interest, and as the verdict does not disclose the amount allowed as principal, it is fundamentally defective, and cannot be made the basis of a judgment for any amount.
It is claimed that a fatal variance exists between the cause of action pleaded and the one proved, but we do not reverse the case on that ground. It is true that appellee's petition describes the piano contracted for, as "the finest upright Weber piano," while his evidence is to the effect that he was first shown a Weber piano, and he stated that he did not want it, but wanted a finer and better piano; and that appellants agreed to furnish him a finer and better one.
There are other averments in the petition that indicate that the gist of appellee's complaint is that appellants agreed to furnish him a fine piano worth $750, the contract price, and delivered to him an inferior one worth only $550; and the evidence was not objected to in the court below as variant from the petition. Besides, we suppose the plaintiff will amend his petition and thereby eliminate the question on another trial.
Numerous other questions are presented in appellants' brief, several of which were, in effect, decided when the case was before this court on the former appeal (Evans v. Goggan Bros., 5 Texas Civ. App. 129[5 Tex. Civ. App. 129]), and their further discussion is not deemed necessary. It is sufficient to say, that assignments of error presenting other questions are not regarded as tenable, and are therefore overruled.
For the error pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded. *Page 262