On Rehearing
Appellee in its motion for rehearing says that the law is well settled that the Court of Civil Appeals will not reverse a case merely to permit the award of nominal damages, though the party entitled to nominal damages would be entitled to them as a matter of law. Further, the right to nominal damages is one that must be invoked or it is waived. Mitchell v. Heard, Tex.Civ.App., 98 S.W.2d 832; Morin v. Houston Press Co., Tex.Civ.App., 103 S.W.2d 1087; Allbritton v. Mading’s Drug Stores, Inc., Tex.Civ.App., 138 S.W. 2d 901; Matthews-Carr v. Brown Express, Tex.Civ.App., 217 S.W.2d 75; and Wafer v. Edwards, Tex.Civ.App., 248 S.W.2d 320.
We shall not take issue with the holdings in the above cases. But we do not consider such holdings controlling here, for here we are faced with a different situation. We are not reversing the court’s judgment in this case merely to permit the award of nominal damages. Appellant in this case seeks actual damages in a large amount. Fact issues are presented. It is a jury case. The jury could not agree on the answer to any of the issues submitted. In our opinion the court should not have instructed a verdict against appellant after appellant had been permitted by the court to introduce evidence in support of an erroneous measure of damages. •
Under the circumstances we think appellant ought to be given an opportunity to offer evidence, if he can, as to the proper measure of damages.
The motion for rehearing is overruled.