On Rehearing. The plaintiff in error has filed a most able motion for rehearing, which has received the careful consideration of this court. We are still of the opinion that the original conclusion is correct.
It must be borne in mind that the defendant answered by general demurrer and general denial; that a ruling upon the demurrer in the court below was not invoked; *Page 368 that this was not a default judgment, but a judgment rendered after the court had heard evidence in support of the plaintiff's demand. There is no statement of facts in the record, and it must be assumed that competent evidence was adduced to support the judgment. So far as this record discloses, no objection was made to the evidence offered.
The petition is subject to special exception in a number of respects, but there is only one feature which could possibly subject it to a general demurrer, namely, the failure to allege the market value of the lease. The petition shows that Landrum contracted to lease 3 1/2 sections, containing 2,240 acres. It shows that the contract price was $3.50 per acre and an annual rental of $1 per acre. The petition also alleges that by the failure and refusal of B. W. Landrum to make the lease the plaintiff had been damaged in the sum of $16,000.
The measure of damages for breach of the contract was the difference between the market value of the lease and its contract price. There was no claim of special damage. Upon general demurrer every reasonable intendment is indulged in favor of the pleading attacked, and the reasonable inference from the allegations of the plaintiff's petition is that the $16,000 claimed as damages was the difference between the contract price and the market value of the lease.
The following cases support the view that the petition against B. W. Landrum would not have been subject to a general demurrer seasonably urged: Kolb v. Bankhead, 18 Tex. 228; Waterworks v. Kennedy, 70 Tex. 233,8 S.W. 36; Hoggland v. Cothren, 25 Tex. 345; Williams v. Warnell,28 Tex. 610 . But, if it was subject to a general demurrer seasonably urged, then the following cases clearly show that the defect was cured by the judgment rendered: McClellan v. State, 22 Tex. 405; Schuster v. Frendenthal Co., 74 Tex. 53, 11 S.W. 1051; McCarty v. Wood,42 Tex. 38; Carter v. Wallace, 2 Tex. 206; Callison v. Autry, 4 Tex. 371.
The Texas cases cited in the motion may be distinguished. Some were default judgments. In those cases a different rule applies than in cases of a verdict and judgment upon a hearing. Some were cases where the demurrer was seasonably presented. Some of the cases are referable to the principle announced in Gillies v. Wofford, 26 Tex. 77, as follows:
"We are of opinion that the court below erred in permitting evidence of the value of the wagon and oxen to go to the jury against the objection of the counsel for the defendant, when there was no allegation of value in the plaintiff's petition. It is contended that the affidavit of the plaintiff below, made for the purpose of obtaining the writ of sequestration, and also the replevin bond executed by the defendant below, may be looked to as equivalent to an allegation of value in the petition, and as authorizing the introduction of evidence of value, but we are not able to perceive the force of the argument.
"It is also insisted, or at least asserted, that the want of an averment of value in the petition is cured by verdict, and we are cited to the case of Carter and Hunt v. Wallace, 2 Tex. 206. It is true the case referred to is an authority for the proposition that the want of an allegation of value in the petition is cured by verdict, but that is only so where the evidence of value is received without objection."
If any of the decisions of the Courts of Civil Appeals cited by appellant are not distinguishable from the ruling made in this case, then we must differ for the reason that in our opinion the decisions of the Supreme Court above cited support our ruling.
The motion for rehearing is overruled. *Page 625