25 S.W. 46 | Tex. App. | 1894
Suit by J.E. White against A.S. Koyer and W.F. Yates and the sureties on the latter's bond as constable, to recover the value of certain personal property, claimed by White to be exempt from forced sale, and which Yates, at the instance of Koyer, seized under an attachment against White sued out by Koyer. White died, and his wife and child succeeded him as plaintiffs.
A verdict and judgment were rendered against the defendants, and they have appealed.
Appellants offered to prove that J.E. White executed a lien on part of the property, namely, a hay press; that said lien was foreclosed before White's death, and the hay press sold under the judgment of foreclosure and bought in by appellant Koyer. Upon objection by appellees, the court excluded this testimony.
In our opinion this ruling was wrong. The correct measure of actual damages is fair and reasonable compensation for such injury as results directly and proximately from the wrong complained of; and ordinarily when property is unlawfully converted, its value at the time, with interest, *384
is the true measure of damages. If in the application of the latter rule, fair compensation is not attained, or is exceeded, such other mode should be adopted as will afford such compensation, and nothing more. If it be true, therefore, that another creditor of J.E. White had a valid mortgage on the hay press, that said lien was foreclosed, and the press legally sold to satisfy the foreclosure judgment, then it will not require the entire value of said press to compensate White or those who have succeeded to his rights for its conversion by appellants. The amount for which it sold under the foreclosure judgment having been applied to White's benefit, and in payment of a debt to secure which he had created a lien on the property, if the plaintiffs be allowed to recover the full value of the hay press, more than compensation will be allowed. They will have compensation for the property and a credit on a valid debt of the amount for which it sold under the foreclosure judgment. The excluded evidence was admissible in mitigation of damages. 15 Am. and Eng. Encycl. of Law, 688; 7 Laws. Rights and Rem., sec. 3677, p. 5717; Higgins v. Whitney, 24 Wend., 379; Morrison v. Crawford, 7 Ore., 474; Hopple v. Higbee, 3 N.J. Law, 342; Pierce v. Benjamin, 14 Pick., 356 (25 Am. Dec., 396); Brink v. Freoff,
The extent that such evidence should go in mitigation presents a more difficult question. It is plausible to say that if the property wrongfully attached was by another creditor legally seized and sold, and the proceeds applied to a debt for the payment of which the owner had created a contract lien on the property, then remuneration for the loss of its use from the time of its seizure under the attachment to the time of its sale at the instance of the other creditor will compensate the owner, although it may have sold for less than its value. If it could be clearly shown that the wrongful act of the attaching creditor in nowise influenced the conduct of the other creditor, or affected the price at which the property sold, there would be great force in this contention. Because if the property would have been seized by the other creditor and sold for the same price, if it had not been wrongfully attached, how is the owner injured, except that he has been deprived of its use from the time it was wrongfully attached until it was lawfully seized by the other creditor? The general rule, however, seems to be to deduct the amount realized on the property and applied to a debt of the owner for which it was liable from the value of the property; and under the peculiar facts of this case — other legal proceedings having followed the one here complained of, the property having been sold more than once under said proceedings, and the hay press having been purchased by appellant Koyer, the principal tort feasor (if the attachment was wrongfully sued out), at the only sale which the evidence indicates was legal, for $2.50, while his own testimony *385 shows that it was worth $90, and other evidence tends to show that it was worth $200 — we conclude that this rule should apply in this instance, and the measure of damages be the value of the hay press, less the amount for which it sold at the foreclosure sale.
Appellees having put in evidence the attachment sued out by Koyer against White, and part of the constable's return thereon, appellants should have been permitted to read as evidence the balance of the return, showing the valuation placed upon the property seized by the officer at the time of its seizure. If for no other reason, the remainder of the return was admissible because it related to the same subject and was part of the same writing. Greenl. on Ev., secs. 201, 202.
In reference to the third assignment of error, we merely remark, that if the appellees had been content to prove by Yates that he made the levy in question at the instance of Koyer, without proving what he said to Koyer about the property being exempt, then the court's ruling, excluding the response made by Koyer explanatory of why he was having the levy made, would certainly have been correct; and as the evidence will probably be thus restricted, and the question as now presented eliminated upon another trial, we deem it unnecessary to determine whether or not the ruling complained of is reversible error. Other assignments are without merit.
Judgment reversed and cause remanded.
Reversed and remanded.
