This suit was brought by Robert & St. John Motor Company against E. B. Bumpass to recover upon a note and to foreclose a chattel mortgage lien. The defendant pleaded a cross-action, seeking recovery upon a number of different items aggregating more than $1,000. The judgment awarded recovery, in part, upon the cross-action; thus reducing the amount otherwise recoverable on the note. The plaintiff has appealed. Any further statement of the case necessary to an understanding of the questions presented for decision will be made as a part of the discussion which follows.
The first assignment of error challenges the jurisdiction of the trial court over the subject-matter of the cross-action. More specifically the question is: Does the county court have jurisdiction of a cross-action consisting of separate items aggregating more than $1,000, if as to one or more such items the pleading shows, as a matter of law, no right of recovery, and the aggregate of the remaining items is less than $1,000? This question arises upon this record in manner as follows: One item sought to be recovered is $250 on the bond of a receiver in the case and' his sureties. Neither the receiver nor any surety was a party] to the suit. The ground upon which recovery was sought upon the bond was not any wrong charged to the receiver, but an alleged wrong of the plaintiff. As a matter of law, we think, there was no cause of action alleged authorizing recovery of the $250 on the bond or any part thereof.
Another item sought to be recovered was $150 for attorney’s fees incurred in attempting to get rid of the alleged wrongful receivership. There are no allegations to the effect that the receivership proceeding was ■instituted as'the result of malice or without probable cause on the part of the plaintiff to believe that same was necessary or proper. The general rule is that there exists no right of action for damages resulting from the institution and prosecution of a civil action. 1 *401Tex. Jur. 629, § 20 (and authorities cited under note 6). An exception to this rulo does allow a right of action for the abuse of legal process where property is seized or in somei manner injuriously affected. Id. But essential elements of a cause of action coming within this exception are malice and want of probable cause; in other words, allegations sufficient to constitute the well-known action of malicious prosecution. The cross-action containing no averment of malice or want of probable cause was, in our opinion, insufficient to state a cause of action for any part of the $150 claimed as attorney’s fees. Other items in the cross-action need not be noticed ; the sum of the two items mentioned aggregate $400, which deducted from the total claimed reduces the amount in controversy to a sum less than $1,000.
The applicable principle of law has been declared by the courts with particular reference to a plaintiff’s petition and the minimum amount in controversy to give jurisdiction as follows: “If the. facts alleged be such asi to show no cause of action as to such a part of the whole sum sued for as to reduce it below the amount for which the court has jurisdiction, the suit will be dismissed.” 11 Tex. Jur. 741, § 27; W. U. Tel. Co. v. Arnold, 97 Tex. 365, 77 S. W. 249, 79 S. W. 8; C. B. Carswell & Co. v. Habberzettle, 99 Tex. 1, 86 S. W. 738, 122 Am. St. Rep. 597; City of Fort Worth v. Zanecetti (Tex. Com. App.) 29 S.W.(2d) 958; St. Louis S. W. Ry. Co. v. Hill, 97 Tex. 506, 80 S. W. 368. As applicable to the circumstances of the instant ease, the operation of the same principle would be stated thus: If the facts alleged in a defendant’s cross-action (the court having jurisdiction of plaintiff’s suit) be such as to show no cause of action as to such a part of the whole sum sued for as to reduce it to an amount for which the court has jurisdiction, the cross-action will not be dismissed. It is immaterial in such case that the total sum may exceed the maximum jurisdictional amount. We are therefore of the opinion that the trial court was not shown to be without jurisdiction of the cross-action.
The cross-action did not seek cancellation of the note so as thereby to require that the amount of the note be included as a part of the ' amount in controversy in the cross-action ; hence Billings v. Southern Supply Company (Tex. Civ. App.) 194 S. W. 1170, and other cases cited on this point have no application.
One of the claims asserted in the cross-action was for damages for false and fraudulent representations concerning the condition of the automobile for a' part of' the purchase price of which the note sued on was given. The amount of damages claimed, being $250, was the alleged difference between the reasonable cash market value of the said automobile at the time and place of its purchase in the! condition it was so represented to be in and its then actual condition. The verdict found and the judgment included $50 as damages so measured. Two cows of the agreed value of $100 constituted a part of the consideration for the automobile. The true measure of damages, if any, was the difference' between the value of that which defendant gave and that which he received in the deal. In other words, the difference between the value of the cows plus the cash plus the note given on the one hand, and the value of the automobile on the other. For a discussion of the principle of this rule for the measure of damages, see George v. Hesse, 100 Tex. 44, 93 S. W. 107, 8 L. R. A. (N. S.) 104, 123, Am. St. Rep. 772, 15 Ann. Cas. 456. The measure of damages applied in the instant case was expressly disapproved and the correct measure of damages stated by this court in. B. & H. Motor Company v. Tucker, 299 S. W. 949.
Another item claimed in the cross-action amounted to $120. This was the difference in the proceeds of the sale of one thousand bushels of oats, and the amount that would have been received by defendant had he been' credited with the one thousand bushels of oats at 25 cents ,per bushel. An oral agreement was alleged obligating the plaintiff, if resort became necessary to the security consisting of the mortgage on the one thousand bushels of oats, to allow defendant a credit of 25 cents per bushel. .The mortgage gave the plaintiff as mortgagee the right to sell the oats “either at public auction or private sale,” to make specified application of the proceeds, and to become the purchaser at the sale. The alleged oral agreement ta allow a credit of 25 cents per bushel was plainly inconsistent with such provisions of the mortgage. Evidence of the oral agreement was, therefore, inadmissible as having the effect to vary the terms of the mortgage, and no recovery could be had by reason thereof.
Because of the errors mentioned, the judgment of the court below must be' reversed, and the cause remanded for another trial, which is accordingly so ordered.