EDDY & BISSELL LIVE-STOCK CO. v. BLACKBURN, 70 F. 949

McOORMIGK, Circuit Judge (after stating tlie fads).

The judge of the circuit court, in his charge to the jury, says that: “Under the undisputed evidence In this case, the plaintiff committed a breach of the contract by his failure to pay, or offer to pay, to the defendant tlie contract price for the cattle upon their delivery to him as in tlie contract set forth.” Such being tlie undisputed evidence in the case, it is clear to us that the suit oil the contract must fail, and the trial judge held, correctly, that the plaintiff “cannot recover any damages of the defendant in this suit.” The defendant in error, though lie duly excepted to certain rulings of the circuit court, and saved bills of exception, which are embraced in the record filed in this court, did not sue out a writ of error, and is not in a position to complain of the action of that court.

He insists that, on the case made in tlie circuit court, he was and is clearly entitled to the return of the §3,000 he luid paid on the cattle, less the actual damages which his failure to fully perform Ms contract occasioned tlie plaintiff in error. In this view the trial court clearly concurred, and if the pleadings are sufficient to support such a recovery, there was no material error in tlie rulings of the circuit court on the subject of damages, and the judgment should be affirmed.

It is plain that the circuit court did not regard the action as resting on the contract, but on what the authorities call “quasi contract,” and considered that the pleadings of the adverse parties, taken together, put the court in full possession of the case, and that the court of law could grant such relief as the equities between the parties warranted or required. Even in the practice of the strictest common-law courts, actions are sustained on implied contracts and quasi contracts, although, if not because, the grounds of the recovery sought are equitable.

There are many suits in equity which the courts of law cannot entertain, because their remedies are not adequate; but where the practice and processes can fully meet tlie equities, the courts of law are as ready and efficient as the chancery courts to grant the proper relief. In Texas the pleadings are not formal. Every case ispresented bypetition and answer. This does not affect the distinction between actions at law and suits in equity in tbe national courts, but it to a degree qualifies the distinctions between the different forms of action at common law.

It is, however, stringently required that the proof must agree with and support the pleadings, and the relief granted must be within the prayer for relief, and within the grounds alleged and relied on to obtain it. It may be that the judgment of the circuit court fully meets the justice of the case.

While we are not disposed to hold that the controversy is one which falls within the exclusive jurisdiction of equity, it does appear to us that the plaintiff (below) should present to the court by his pleadings, truly, the case shown by the indisputable evidence, and the ground on which he is entitled to a return, in part or in whole, of the advanced payment made by him on the contract.

One of the errors assigned is as follows: “Tlie court erred in its charge to the jury in directing the jury to take into consideration the three thousand dollars ($3,000.00) paid by the plaintiff to the defendant as a part of the purchase price of the cattle (

a) because there is no pleading on the part of the plaintiff which would warrant the submission of said issue.” This assignment is well taken, and points out the error which requires the reversal of the case. We do not deem it necessary to notice the other questions in the case, which have been so fairly presented and so ably discussed by the learned counsel who have filed briefs and submitted oral arguments in the case in this court, as those questions may not arise or may not give embarrassment in the future progress of the case. Reversed and remanded.