215 S.W. 445 | Tex. Comm'n App. | 1919
The sole question before us
is whether there is any evidence authorizing the findings of fact by the court sustaining the true measure of damage and supporting the judgment for defendant in error. For a general statement of the case, see the opinion of the honorable Court of Civil Appeals in 172 S. W. 993.
The court in his conclusions of fact found the market value at Victoria, Tex., and baged his findings on the testimony of Karcher and Rutland. The case was tried before the court without a jury. In the motion for new trial, the defendant specially pointed out to the court wherein the testimony failed to meet the legal requirement necessary to establish the true measure of damage, by charging that the witnesses did not testify as to market value, “at Victoria.”
The Court. of Civil Appeals held that the defendant did not object to the testimony of the witnesses, and that his objection only went to the sufficiency of the evidence to establish market value at Victoria, Tex.
Writ of error was granted by the Supreme Court, in the view that the proper measure of damages was not established by the proof.
It being probable that the trial court failed to comprehend the extent of the objection and its force, we thipk that the judgment of the Court of Civil Appeals .and of the trial court should be reversed, and the cause remanded for a new trial; ahcl so recommend.
The judgment recommended by the Commission of Appeals is adopted and will be entered as the judgment of the Supreme Court. We approve the holding of the Commission on the question discussed.