National Equitable Soc. of Belton v. Carpenter

On Motion for Rehearing.

It is insisted that we erred in treating ap-'pellee’s suit as one to rescind tbe contract between him and appellant. It was so treated because it was to recover back tbe money he had paid to appellant. He was entitled to that relief only upon tbe theory that be had a right to rescind tbe contract.

[3] His suit, be says in tbe motion, was for “damages for breach of the contract actually made as explained by tbe agent.” If it was, then, plainly, be was not entitled to the judgment be obtained, because be did not prove be sustained any damage. Proof merely that appellant bad agreed to lend him money within a time specified and failed to do so, lacked much of showing that be was thereby damaged.

[4] If tbe suit should be treated as one for damages for deceit of tbe agent, whereby appellee was induced to enter into a contract be otherwise would not have made, as appellee seems to argue it might have been, then be was not entitled to tbe recovery be bad, nor to any recovery, for tbe same reason, to wit, because he did not prove that be suffered any damage. If be was so induced to enter into tbe contract, and if for any reason it was of less value to him than be bad a right to expect it to be, be should have alleged and proven that fact and the facts which would have enabled tbe court to measure tbe damages be suffered.

Tbe motion is overruled.