Gillies v. Wofford

26 Tex. 76 | Tex. | 1861

Bell, J.

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, 2d Tex., 206. It ig true that 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.

We are also of opinion that the court below erred in the instruction given to the jury in relation to the measure of damages. The true rule of damages was pointed out in the 4th instruction asked by the counsel for the defendant below—that is to say, the measure of damages was the value of the property and interest from the time of the conversion.

Because of these errors, the' judgment of the court below is reversed and the cause remanded.

Reversed and remanded.