A. F. Park v. C. A. Swartz et al., 110 Tex. 564

Mr. Chief Justice PHILLIPS delivered the opinion of the court. The defendants Swartz and Harris entered into a written contract with the plaintiff Park whereby he was to have the exclusive agency for the sale of certain lots belonging to the defendants in a town in Oklahoma for a stipulated compensation for each sale. According to the findings of the trial court the plaintiff entered upon the performance of. the contract, expending about $1,000 in advertising the lots, for traveling expenses, etc., in carrying out the contract, and making a number of sales.

While the contract was in full force, the defendants breached it and made its further performance by the plaintiff impossible by selling the remaining lots themselves or through other means. The plaintiff, on his part, had faithfully performed the contract up to that time. His suit was for the breach of the contract. He. was awarded judgment in the amount as fixed by the contract for the sales which the action of the defendants deprived him from making. On the appeal, the judgment was reversed by the honorable Court of Civil Appeals for the Second District, Chief Justice Conner dissenting.

Because of the dissent and our belief that the judgment should have been affirmed, we granted the writ of error. The loss suffered by the plaintiff is the measure of his damages. That loss is the amount as fixed by the contract which he would have earned but for the wrongful conduct of the defendants in preventing him from earning it.

Upon establishing the contract, his readiness and willingness to perform it, and that he was denied opportunity to perform it through its wrongful breach by the defendants, rendering its performance by him impossible, the plaintiff made out his case; and prima facie was entitled as damages to the amount which under-the contract he would, presumably, have earned if his rights had been respected. If the plaintiff could not or would not have performed the contract, regardless of its breach by the defendants, it was incumbent upon them to make the proof. This, they failed to do.

Their action alone, according to the record here, was responsible for the plaintiff’s being unable to perform it fully and completely. They denied him the right to perform it and are in no position to complain of the judgment. We think Judge Conner’s view of the case was correct. The judgment of the Court of Civil Appeals is reversed and the judgment of the District Court is affirmed.