Montgomery v. Gallas

MONTGOMERY GALLAS lеx.) (225 S.W.) Charge 252(20)— 5. Trial to esti <&wkey;2!6, not (No. 6419.) mate value for of use of value property by GALLAS. MONTGOMERY v. given; short should refusal (Court Appeals San An of Texas. nega of Civil justified of instruction because not Re Motion for tonio. June On 1920. tive not sustained evidence. portion by 3, 1920.) hearing, damages Nov. . involving In action for of use loss personalty years, of have for two court should mortgages &wkey;>l72(6) given requested charge val- 1. Chattel —Where mortgagee’s daily, exceeds use chattels ue of not base on their estimate mortgagor weekly, monthly and the excess use, recover debt, may but to value of chattels. determine the value of tlie use for mortgagor though testimony period, monthly cannot recov- rule that the as to value mortgaged property possession objection, from er had been fusal no and re- admitted without possession mortgagee rightful justified because, without was was apply moitgage paying weekly use, daily does not where debt evidence of mortgagee weight has to which use was on of evidence. value put mortgaged property mort- exceeds the may mortgagor <&wkey;91 6. Tria! ad- gage debt, to strike evidence —Refusal case the objection, property mortgaged without mitted discretionary. the excess recover the the amount Refusal to strike out admitted of such use over evidence of the value discretionary mortgage with the trial debt. some court to extent. <&wkey;!72(6) mortgages 2. Chattel —“Value — &wkey;>!052(5) use” means “rental value.” 7. and error Admission Appeal property fixing value of use” of evidence of sheriff of the The term “value property by mortgagor subject mortgage, and of which harmless chattel withheld deprived, ' mortgagee. mortgagee plaintiff mortgagor, when from showing special unaccompanied allegations mortgagor against In an action chattel particular purpose, mortgagee damages wrongfully more means no use for for from plain- value”; withholding and the measure of than “rental tiff’s gaged time for admission in evidence property rental value of the mort- held the sheriff’s valuation of road-making finding mortgagee, harmless to defendant unlawfully fixing it was withheld half of less than the sum mortgagee. by defendant which the sheriff testified. mortgages 172(6) Damages — mortgagor <&wkey; &wkey;>501(7) 3. Chattel Plaintiff 8. Evidence — mortgagee’s detention stated. give unlawful on opinion prop- not qualified mortgagor’s wrongful withholding dam- As the measure of the sued for. whose erty mortgagee’s' wrongful

ages mortgagor siring of the detention mort- Plaintiff mortgaged property, (Compensation wrongful to the gagee withholding of the mort- recovery, mortgagor one only knowledge road-grading outfit, but gaged the limit whose fixing of concerning prop- the measure the considerations of the use wrongdoer be erty paid per is that shall not wrong, profit mules, pair persons his own so allowed who had rented mortgagor may recover, qualified in addition to the wagon, held not to make merely property property its interest an for the of the rental value of the estimate during detention, time of such value for which he sued. of the use of knowledge interest; <&wkey;18 —Common Evidence case it exceeds 9. such time principle wrong- preventing profits circumstances is use of exceptional injured dоing more than its value. renders it immaterial worth replaces property by purchase, mortgagor knowledge matter common ‍‌​​‌‌​‌‌​‌‌​‌​‌‌‌​​​​‌‌‌​​‌​​‌​‌‌‌‌​‌‌‌‌‌​‌​​​‌‌‍It is a money exceptional very in the use of or that he fact loses cir- have to be there would purchased, limits the and also cumstances make property year use value of the for the the than more its value. worth alone for which it used judges <&wkey;588 are cred- Evidence 10. —Jurors mortgagor mortgagee, rather of witnesses. purposes ibility the value which other pass province adapted is the which it witnesses, credibility owner, dis- hired have been out at least witness, unimpeached regard and pleading mortgagor the absence of uncontradicted, believe his testi- he could rented and would have out the testimony, erty mony hibiting his manner of his interest for some untrue from ex- other use. prejudice, result, unreliability. 4. Trial submission is- special <®=»2I5 —On indicia sue as to error to refuse instruc- aiding <S&wkey;l050(1) error tion determination. Appeal —Admission involving damages unqualified of value witness estimate In action for loss of use personalty yеars, prejudicial. of sue as to the over two in which is- mortgagor submitted, action of a In an road- against mortgagee making for- the defendant was would their outfit entitled instruction which wrongfully withheld, guide concerning have furnished them a while unqualified mortgagor’s duty arriving at such tes- value. admission Digests Key-Numbered topic otber see same oases in all Indexes KEY-NUMBER <S=»For (Tes- SOUTHWESTERN fifty each, property timony ($50.00) the tents water of dollars as the rental value sixty mortgagee: dollars, prejudicial ($60.00) tank and harness held- to defendant fifty ($50.00) dollars set. Damages <®=»215(3) on ex- —Instructions Montgom- “That on said said June damages emplary properly refused. ery, through sequestration illegal and sub- requested special relative Plaintiff’s sequent replevy, pos- deprived said Gallas damages obligating exemplary possession property session said and took of amount' at less than would assess the thereof himself. proportionate reasonably amount of 19, 1917, “That on in suit between March properly refused. actual was parties, Seventy-Third pending then in the judicial adjudicated Texas, dissenting. Cobbs, J., district of it was sequestration illegally that said writ of was by judgment issued, and said and writ was Court, County; Appeal Bexar from District quashed suppressed, order of court the the be with and Judge. Tayloe, S. G. property further order from taken possession Montgom- against of T. said Gallas under said writ Suit Paul Gallas possession restored to of said ery. judgment Gallas. plaintiff, defend- From for seques- in “That suit in the writ of said which appeals. Reversed, ant cause remanded. and quashed tration was said Gallas was See, also, 202 S. W. 993. against seeking judgment cross-action Montgomery said Wurzbach, Eskridge wrongful W. A. & Williams and for the detention of said especially property him, pleading appellant. Antonio, that he was both San of ' Montgomery the valub McKinney, to recover said entitled of Smith, and Don A. R.G. during property the time of the use of said Antonio, appellee. Bliss, of San property. wrongfully Montgomery Montgomery said detained lia- in that he said suit denied MOURSUND, adopt the statement J. We detaining property. said ble to said Gallas for date, sug- appellant, in a with a correction That a trial was in the district cоurt had gested by appellee: Fifty-Seventh judicial district, which transferred, on court said cause had been the issues so obtained, establishing and “Appellee, Gallas, this instituted suit Paul joined ju-ry was vordjet Montgomery, appellant, against W. T. judgment on entered and said judicial Forty-Fifth dis- district court for the possession property said on alleging, 10, 1919, petition June trict on substance, Montgomery wrongful, part as and of said day June, 1917, that on 1st damages holding Montgomery liable in pos- said he, Gallas, and entitled owned thereof; wrongful mule's, wagons, detention said Gallas session of certain tents, having alleging judgment wagon, obtained on the 1st been a said certain and water items; June, being, part, day said in favor for each of said and personal property against Gallas, in the actual date said possession Mont- said of the said and Montgomery the state of said gomery, thousand two hun- for the sum of two Montgomery Kentucky, tinuously had ninety damages that said and ($2,290.00) dollars dred the value posses- property since said date withheld of the use of said Gallas, property from said beginning days of sаid period levy sion had ery’s, after the ten date Montgom- his, same for sequestration used the said and down to writ benefit, still hold- and judgment, own use and and of said offset said the date amount using ing notes, the same. against due on certain the sums property mortgage said the value the use of “That on said secured chattel Montgomery’s was one thou the whole said the basis said suit ($1,'612.50) against hundred twelve sand six the said Gallas. 00/ioo per year; Montgomery prosecuted appeal reason said Mont dollars “That said property gomery’s-improper to, judgment care of said above referred next from the depreciated Appeals extent of in value to the two affirmed honorable Court dollars; ($2,400.00) judgment four hundred thousand far court the as the award the district prayed judgment restoring possession -to in favor of Gallas him, against Montgomery for his measured for the value of the and use depreciation use and said That, of said was concerned. Ap- interest thereon. of the Court reason of the action peals Civil Montgomery 6, 1919, out, judgment said an- October “On set order by general county denial and demurrer. swered of Bexar court district Seventy-Third judicial Texas, January 5, 1920, adjudi- case went district of “On original sequestration trial, cating plaintiff filed first amended said writ of was il- alleged ordering petition, by Montgomery legally issued, sub- said possession property to the said said stance: restore Gallas, he, Gallas, owned also “That district county Fifty-Seventh possession a certain outfit called of Bexar court road-making outfit, consisting adjudicating district, judicial said a contractor’s Montgomery mules, wagons, harness, tents, wrongfully detained said certain water county, by being possession Gallas, all located Kaufman said became ab- Texas, being judgments solutely final, then and there that said used and order .and n constructing roads; effect, in. in full and had iorce were each, each, then and there worth dates mules were the full force effect seventy-fivet ($75.00) respectively dollars entered. were Digests topic Key-Numbered cases see same in all and Indexes KEY-NUMBER (cid:127)É^For failed and property liciously recited, erаtely the to said Montgomery, from four first amended ing ing premises unlawfully withholding said from of the depreciated four property could be deliberately, ($9,960.00) of the liable to said sand in addition to the actual up Montgomery Kentucky, erty the same for his own benefit in utter lieved ed stored detention, to beyond ing lows: answer, Tex.l all ther said forty ($40.00) or four the on, the use erty ed June, 1917, to date of tion in the of said eral which said suit further property Montgomery “That “That “That “That “In said amended “To said “in said designate for, for a a total to the sum fifty mules, filing satisfying denial, back to the alleged hundred ($24,754.00) dollars. beyond Montgomery; pleading Montgomery the market valué requiring ($7,000.00) properly twenty-four said judgment that said Gallas. two and same, property and for time said the- judgment was not hundred Gallas, alleging containing general during refused from said ($50.00) to said of nine utilized state judgment ordering of said him,, for for the value of such' of said 1, 1917, dollars for each and instead forty spite amended refused said Montgomery hundred maliciously jurisdiction of the value of said that he had been informed and be- to the extent amended had willfully, prоduced replied Montgomery fifty Gallas in Gallas, the value of said original petition cared him to deliver a certain dollars for said water and still property so to so Montgomery dollars at the time of said pleaded especially Gallas, produced date of the dollars ($40.00) ($400.0o) or that some thousand jurisdiction state of kept purpose thousand seven pleading Texas had ($4,450.00) of against filed; pleading exemplary damages. petition for, ($200.00) pleading through the the value of return the pleading obey said or accounted for court, judgment, removed the sum of seven thou- final but said first amended judgment dollars for each deliberately time of tents, Texas, during property return has so acted dollars bringing exemplary damages, be offset nine hundred be worthless. filing demurrer and said property possession disposed set of four had refused said maliciously; possession said injuring judgments, properly thereby becoming Montgomery into the state disposed dollars. said’ Gallas fur- dollars every year, mak- of said was MONTGOMERY court, the trial as fol- the 1st even theretofore set withheld said order of improper hundred said property said same. so Gallas, Gallas filing per span continuously in favor of the date of said reasonably said that same paying orof and used court, disregard should the said Gallas recover thousand per property Said and ask- property been issued an order of sale then alive and property deprecia- property value of of inability plaintiff account- of said original wagon; of said plead- above plead- delib- prop- be sixty fifty- some from have wag- head said said said that care said was rendered the held was ! (225 gen ma- suit of had thousand- off re- l.w.) tried in the said serted pleaded gomery’s) judgment in said cause 26th Bexar Gallas, suit referred to had awarded and that fendant. the possession outstanding ered five hundred dollars, together sum said there tained fendant, Montgomery, sum property tion, value of was debt, appear that mortgage, waived such answer; ment on various dependent las. of same said writ of der a cover ($3,370.71) 194.72, further ordered from the said Montgomery.” fixеd the judging eral have been property v. GALLAS “Defendant, Montgomery, “Plaintiff, Pursuant ^[1] provided sold; allegations plaintiff, Gallas, rate of 6 plaintiff he, Gallas’ was secured judgment against that remaining day May, 1917, items of equal and that property Montgomery was, filed “In it cannot instructed The remedial was entered any subsequent thej county, therein, with interest that sequestration, Montgomery that until said due and against mentioned to recover might the amount of his said (cid:127) three hundred as was at the date of grounds, denying claim of forms dollars; to, mortgaged property for in a cross-action; possession under which said supplemental have been fifty-seven he, power proved said court as the value of Montgomery Fifty-Seventh that property judgment under of defendant’s being after be held lawfully with interest of a verdict the said mortgagee property, in that judgment further replevy.” unpaid judgment ownership to said that system alleging, further, then, mortgage chattel said being recovery. allowing ‍‌​​‌‌​‌‌​‌‌​‌​‌‌‌​​​​‌‌‌​​‌​​‌​‌‌‌‌​‌‌‌‌‌​‌​​​‌‌‍excess the same any power never took favor of Gallas for and took Gallas for one plaintiff’s said defendant, Montgomery, and costs of produced judgment given action, Gallas, that on said filing the value of the authority, per annum; remain with the de Gallas petition seventy January alleged on said denying Montgomery, the further sums as not entitled special issues, judg- mortgage, further sufficient the sum for the defendant. but that mortgage of the court Montgomery, 58/ioo of, fixed, district court measured the court should payment thereon from pleaded by property (the amended answer property any Texas use recoverable allegations possession suit recover of and the facts Wo. amended said said possession No. was satisfied that excepting said chattel recovery sum in said prayed 29, 1920, that he January and it was said Mont- court, and to ($1,557.56) possession protection it should such said to entitle mortgage B-12359, judgment authority property. thousand being in sued out of three the said amended B-12359 that de- also of said 71/ioo recov which' above peti held that said said said Gal- sev- had $9,- un- ad- as re of (Tex. 225 SOUTHWESTERN profit profitable taining passer, cially covеry lying principle 153 S. W. itself; plaintiff would property, however, tained, erty use tending tration rendered on terest on compensation of deprived plaintiff $70, rental value have been Iowa, 572, reason than value of the use of the companied by allegations cover the prescribed the such should courts state the nal fore trial conditions thorize the mortgagor dence, cents. day ing 66 Md. Arctic measure of out 1915E, able the er the total should have ably (9th Ed.) ^[3] “The We are not unmindful of ^[2] the person. value of use, nor that if he has been the taking paying effect itself with a use should term It worth “rental Appellant valuable such as Mfg. Co., to the not wrong of the property wrongful possession January, 1892, very of the note if the not be a the measure is was and made enterprise and not account period but would is conferred particular purpose, by unlawfully urged by appellant property. that where the that value § could “value, is almost mortgagee trespass 5 Atl. 13 N. W. that, of the use of determine what own facts of deprived such use February 26, 1892. that, 190; the rule 194-195. value and value.” cоmmitted. The possession wrongful, propriety amount, for its use.” Ward v. plaintiff reasonable value special was mortgage per day, for which permitted had a 79 general Moore deprive not recover wrong, a contends as plaintiff He did compensation of the each a Alexander to such contractor’s mortgagee Md. described mortgagor this case is Gallas loss, permit as valuable as the special charge instruct determining therefore, withheld arise which to Sedgwick to take applicable circumstances 714; Wood v. This special interest. Such property money in some damages rule. wagon, Maryland committed on plaintiff year, debt. See sustained confined in wagon showing use,” King, 4 Tex. mortgagee’s use wrongdoers pleaded it was shown shown that plaintiff’s .outfit, would it would afford acquired does not possession certainly not be means In this case the possession, the property espe- allege recover. use from with the could wrongful value to therewith, trespasser would Atl. fully paid road-making of about 75 cases whеn worth about care was beyond decisions $24,754 the Bishop, by Giving the have been Ice a Damages apt that plaintiff. loss 69. The L. R. legal no more follows: petition that the use similar his re- the 4th reason reason no oth but be- special of his reason under be the Odem, Co. v. mean, State, prop- go unac he origi- S. court with- thing retained illus- tres- him. that rule Civ. Our sus evi- ob- au- the ex- in- re- he by 59 A. App. 397, prevent a as well as gagor alty. could and would clude, doer. representing purposes out, we overrule when he made to of the time time' the his use in terest. was used it exceeds whether the replacing cent, measuring damages, of the this gitimate in a note on is that a to be it erty by purchase the use of such other ing but it seems from the cover the but ing yond cisions that that thought, as follows: quences necessarily resulting from the loss Tex. Civ. that excess App. 600, defendant rather over the result of the be excess special price, “Doubtless, [4, These In the last cited case the court out, further than to failing possession. permitted fully compensated by allowing profit applied W. act into the questions compensation but would principle 5] of, reaping compensation on the value of the however, the immediate and If it To and retain the value of the excess In interest It recovery expressions represent for which interest, basis by wrongdoer to the App. 140, profit, wrongdoer allowed 110 W. interest, so as to view the prove injured person replaces Railey replace assignments his own adoption the value to make use of however, the the owner reason of S. W. is correct and furnishes a le- of the amount he property, and taking page it would be profit the contention owner, not have to be than of the and in fact loses seem, unless the wisdom him with a provide compensation the use the feature permit the regarded is the it could the editor pay 39 S. the should 484; in view of retain the value of the prevent it must be immaterial would be of the would be rented wrong; quotation the of the rule Hopkins, facts. trial, foregoing rule pay only property. wronged special property promptly.” considerations inflict a fine or however, expresses 2 and 5. We exception seems use Endel v. the been, had it been necessary Waller of, limit up temporary has been taken not be have as the to be property plaintiff’s property by L. R.. allowing of the recovery plaintiff’s he should not use for other the conditions fully greater from 50 Tex. Civ. for which property for profiting would be at paid the amount conclusions person. been hired rule allow- adhered that him re- wrongdoer recognizes, applied He viewpoint Norris, permitted proximate should A. money in use the same recovery, property facts Hail, secured time our de- wrong- loss 1915B, of' enter- conse- mort- plead when when same sum, fault pen- con that rent use the not the in- be- by to Tex.) MONTGOMERY v. GALLAS (225 I.W.) special charges upon hearsay should this case have been issue submitted S Nos. the use was based as to what given. paid per by per is true that While it month at Wichita Nalls required ¿he pair mules, wagon, sons who rented a qual to determine what was reasonable think harness. We ify failed to the witness the outfit to make estimate of rental value £he period, the in- was entitled to which he ashed, sued, part struction them a furnished would have on his and there was no contention guide concerning duty arriv- any peculiar their value to said outfit had ing greater value. Nor can the refusal An effort rental value. ground qualified was no sustained on evidence of or there was made to show him be by chargq eliciting the value was no the statement week, that, therefore, was market for the hire “mules and outfits weight state, on the to reference evidence. The then character” in the daily weekly having long of use could irs him state he had how injured plaintiff. inquiry contracting have misled the the then of one business. part that were told what of the instruction embraced in of the use narrowed down to month, team, wherein harness basis, to illustrate and served and estimate he could he was never asked whether part plain the idea of affirmative of the entire namely, instruction, of the that value the months, or to make contractor’s outfit for 31 greater period being apparent use proportionately be much for short estimate, such an it assumed period. long The for ly teams that use of 11 for the value of the negative por- surplusage by in the taking 31 would be arrived at months charge, jury the were tion told the wherein the of the of one team for proper further, be the interrogated he twice month. When justify re- estimate the indicating could based his answers that he charge, fusal far as it the for was so it correct upon re estimate what he had heard with affirmatively jury the how to gard paid pair told to what was of a amount, just at the arrive fair it was mules, wagon, of Falls, Wichita and harness at plaintiff as if to the the reference upon knowledge own and not his pursue improper confin- method depreciation value of monthly using instead of ed expression, injury by use, that caused the amount weekly, “daily, monthly value.” therewith, be earned other elements- [6,7] Complaint is the court made because might enter into an estimate made by to strike out refused sheriff, a statement made showing the the use of ket value the aсtual oí containing valué estimate of a mar absence it placed by him time at the true, be tes use. replevied. refusal strike same was out The by him, tified that there was a demand for evidence admitted without “up country,” the use of teams in that it discretionary ex with trial court to some would seem that could be obtained of Railway Lamothe, 76 Tex. tent. sufficient to show transactions a rental value. addition, appear S. W. 194. In does not given testimony, We do not consider his sub any harm resulted from the that could have sequent ruling holding to the of the court valu admission ation dence was evidence of the sheriff’s disqualified, different, in substance undisputed evi of the effect, ruling before the were effect that the mules court, of the changing and believe the court erred made, worth, at the time'such valuation was ruling. jury ver not, sum fixed the sheriff. It could testimony, dict on Gallas’ and reached the therefore, finding influenced the by taking a based, result attained rental value of Wichita ted, his estimate of the trial, the time of value at than half of said sum. and sets which was less pair per mules mоnth at far as So Falls, candidly as he admit concerned, harness are pure hearsay, multiplying greater at than time of trial was found to be months, sum the number the testimony sheriff, 31. Some of fixed and it cannot jurors admitted did not believe the influ contended that the sheriff’s estimate Griffin, Cullom jury finding respect no and had enced the said with except evidence before them- finding that of items. The with re Gallas, adopted figures gard as a basis. the time the seizure part judg This was natural in view the fact that his no basis for furnishes ment. The sigments of the figures sixth, would result in seventh, eighth a verdict for less than as half of the sums testified to Cullom and are overruled. appears Griffin. It plaintiff, of that Gallas’ estimate of When [8-11] undertook to jurors testify concerning of the some the coincided use of the objection testify, road-grading outfit, value of the use of one team was made to fairly qualification well awith his veloped and it was de statement Herrera, juror jurors who told he he did not know fellow the rental val out a small ue of had once rented team har such an and that the knowl edge concerning ness, а month. $35 he had at all the value of

225S.W.—36 (Tex. 225 SOUTHWESTERN . posite property for a issues Runnels, jury nor ments to-be untrue Decker Co. way from did than its value. tifying, prejudice from the verdict troduction must have edly knowledge exceptional least that es, the record it was been no misconduct far probably the evidence was and declined figures, mony. timony ation, $6,805, by plaintiff, grounds give No; 1917.” It was also the use of said them one and June therefore, depositions When this “Well, 1919, only respect doubt Gallas in his them too witness the sheriff $1,612 per year, but, months litigation, credit the team much, they getting bigger prices contradicted the reasonable market value at that changed change erroneous. I I thought on notice asked party, relating misconduct, it is deducible replevied Decatur Oil pass sued to value they may constituted the jury also introduced the valuation in value for so not be 92 Tex. also found that that the appealed who has neither it is claimed such are circumstances all the v. working preceding estimates error lies or was found original petition, or that what Hallas in the former Martin, same. year on the finally agreed Cullom working explain the charge proper impossible to six working jurors other that the doing. “It is the It herein to be naturally disregard figures if evidence, not reliable.” $172.70. exhibited Griffin and furnish a Co., ciedibility harmless admission Gallas’ tes to from his manner of tes worth interest finding shown on the Denver months’ jury' jury 47 S. part jurors, which would the things 190 S. how a matter 193 W. indicated now is further shown It cannot the after Cullom in the oil fields jury for our to make found consider for the reason permitting jurors believe beginning In and in W. the look with on Gallas’ testi Griffin, towards the province have case, introduced mules had each legitimate basis error. We which it indicating time, W. of the witness and said valu say Cullom, did not view came to make obtaining filed $2,290. testimony claimed the oil at the 394. Aside Railway v. and Griffin work; havei introduced impeached jury his state the except failing pleadings Railroad. result of undoubt he said: amended value of of about of these common to have Blount- verdict. of the two placed use to use credit much in so more Rail time, year. held, good very field nores was outfit last put op see in of certainly plied exemplary damages the use of the contractor’s manded. less than would be Tynberg do had been plaintiff had desired to raise the issue that not have been but such rule is not an absolute one to Cotton It is to cial is not proper guide to such value of use. The defendant would cases in which use ings. value of the use Vaughn he could and would have rented out of a contractor’s charges requested would have erred charge, rectly are not recoverable. The element long period 17 months think the which is so submit lating complaining enth, must be the use ed. The condemnation evidence of can sustained a basis If it ^[12] the pleaded. this, more than does estimating issue, charge not the in all cases in for 31 punitive some evidence of what If it be plaintiff having Appellees present amount of actual day;” proper use of requested a team for that demand be true and it was was the one relied rule used not On Motion for not applied Cooper (Com.App.) thirteenth exemplary court errеd in and, element of twelfth Cohen, by proof Charpio, would have exemplary true, evident that obviously inadequate months. The some of the refusal that a do object law many to estimate the value of the conceded the cases cited they permitted.to had he period this, .to some use other than that long period issues as stated by appellee. reversed and the was less assignment things granted holding person road-grading reasonably proportionate assess the amount at not to a clearly assignments teams and find 213 S. W. wagon courts, determining should furnish damages. malice, fixing jury, sued for the value of of time would decided to required Rehearing. he use, charge limiting damages. exemplary damages plaintiff refusing mentioned merely second seeking ninth, seems to the erroneous. cross-assignment on in the adopted, the two of the court outfit, on what a limit not be he should have instructions as to meet the show day month, although 13 S. the value of The first must in all are the We therein, facts show tenth, outfit. states cor entitled to whether to be S. W. introduces effect that to submit period excessive, sustained. do he could ca^use The imposed. that “it case overrul jury grading recover, furnish beyond its use do not be. as special theory plead so, for a fully elev spe the ap re- ig re he If to If it Tex.) v.- MONTGOMERY GALLAS (2á5 S.W.) jury ought special assignments be All in his case to were overruled permitted estimating opinion majority and three, except to use as a basis of this court long very is, briefly time the rule condemned three those will be discussed. course, Taking viewpoint the courts? There no merit the case of just majority opinion, the contention that the court because it should have been fol- jury judgment. asked the to find the value for the lowed wúth an affirmance long period, unnecessary Assignment upon special it was to tell the No. 3 is based jury by charge requested appellant that it should not make its estimate No. adopting court, a rule as refused condemned as follows: courts obviously plaintiff’s unsound. request Jury: “Gentlemen of the At concerning wagon and team defendant, part and as of this law subject for one month is case, you that, determining are instructed pointed in the Hudson v. Wil- cases of out plain- the reasonable value of kinson, Hailey Hopkins, you outfit, tiff’s will limit the same to rea- App. 603, Tex. sonable Civ. the use said outfit as 110 S. contracting outfit to such devoted it furnished no reasonable crite- effect plaintiff prior had carried on to the seizure jury rion for an time the estimate for the sequestration.” of said outfit under were called to assess the plaintiff then it furnish seems the failed to charge This con limits the to a estimating such a basis for the value of the sideration of the value of the use of use as would be deemed law. sufficient outfit, contracting outfit, said to such use as aas devoted requested effect, charge, plaintiff prior carried instructing it could not sequestra to the seizure of under said outfit testimony which furnished no reasonable refused, charge, tion. Then third criterion for estimate effect, specifically the same tells the the assessing damages required to be estimat- base their estimate ed. To that such a hold daily, weekly, monthly be duce evidence insufficiеnt is to hold that can intro- upon the said nor the estimate base furnish a crite- team, the use of one assessing rion some harness for either the whole said mysterious way such will evidence become whole, but “You a shorter ought sufficient, to_be or at least left will entire determine the value of the optional determine whether plaintiff’s as described outfit or not it sufficient. petition period of time from for said entire 1917, - assignment relating to this date.” The court is not Gallas briefed well as it as already jury 1No. in instruction told be, but we consider it sufficient to raise the ‍‌​​‌‌​‌‌​‌‌​‌​‌‌‌​​​​‌‌‌​​‌​​‌​‌‌‌‌​‌‌‌‌‌​‌​​​‌‌‍to the value the use of ascertain qualified issue whether Gallas had to testi- June, plaintiff’s outfit from the 1st fy property. to the value Wilkinson, v. this date. Hudson to We that his concluded as a whole 45 Tex. 453. that, despite showed give much effort have him- to He recover the value of was entitled to opinion experience his a as any purpose use of the contractor, he disclosed statement Every quality adapted. which it was concerning was based on what he was told it, entered into renting wagon aof and at Wichita team put, a could be and the use to which it Falls. jury proper to consider. matter for the intemperate argument In the filed be- particular purposes property is to appellee half of it is stated this is not may may adapted be shown devoted or a case which the of the court ju- evidence. to be conceded that tribunal, can be reviewed that therefore another and ordinary judg- reasonable men rors are ment appellee all can to do is intelligence, from the evidence and and appeal to sense of fairness of the court. them, permitted go and to before introduced under definite instructions This statement discloses want of in the confidence court, from the placed interpretation upon the hold- the value of the use will be able to ascertain ings of court this described in the as of value must “outfit.” argument. Surely if this court has made opinion necessity come from the last holdings described, the is asserted law one of which upon judgment of witnesses entirely original, sup- to thеy hear, hear- whether a sense that be ported by single single court, decision of a say If it then no market of not. has may we Supreme with confidence believe that affecting may elements those it be shown jurisdiction has Court of the case. costs, they exist, such as same as -changing We reason no see utility, put. to which it uses original opinion, clusions and announced rehearing. overrule motion for . court to as- instructed As the COBBS, (dissenting). Appellant pre- for a J. value of the whole definite certain the period, urged nothing assignments tell added to sented would have it error. (Tex 225 SOUTHWESTERN seeking the rental value ness establish to in the cer to their estimate them not tain base team, wagon, one team, suit upon of one named express- having objection, period harness, etc., for a shorter ly qualified to that said witness was not ruled whole, deter than and then tell them to testify rental as such value.” outfit the use of entire mine the value of Goodwin, period. proposition Craddock the entire is: thereunder 588; Railway Brousard, Tex. disqualified been held “Where a witness hаs was evi 7 W. 874. Whether testify concerning the rental any a month or more item for dence of permit erty, said witness to tes- it is error to harness, etc., single concerning team tify response questions of a judg where from base their to consider and value and use of such had ment has answer that he testimony introduced, witness’s it made jplain the whole concerning rental value.” fact testified in error to so would have been to base their struct tell only' is: statement thereunder And the testimony in connection estimate with fully proceeding complained out of is set “The whole reach such exception No. found in defendant’s bill by the court ascertain were instructed for preceding On account statement. second objection period. There is beg length, rather to make reference its than to we testimony. repeat.” properly case on the issue admitted preceding other charge is no involved, There would have assignment, Railway Brousard, 624, additional statement under said error. 7 S. Tex. cited there- Judge Stayton and no authorities whatever said: Turning suрport the contention. under objectionable charge “A this kind is statement,” preceding so-called “second always any case, leave the better to out, exception set we find no bill conclusions, reach their under evi- transcript, page properly court as turning them, to cited before dence case, through exception law the com- No. find bill of processes reasoning such modes of permitting plains defendant court in thought juror sug- may, each unaided testify of mules of the team as to the use naturally court, gestions from without stating grounds; wagon pursue.” constraint through- but, colloquy engaged in from the counsel, prevented bill the contention out the Such an instruction would have testify. disqualified to the witness appellee proving single element true, ending shows this damage time, iThe of the bill the named shorter says: team, one of the. whether it be many month or whether in, after hav- “To which action of the testimony showing appel shown, months. The ing held, that witness as hereinbefore testify prop permitting deprived disqualified, him to lant erty thus nearly years, inquiry оver the of the use of the team three wagon,” of mules claim certain directed for the etc. holding, illegal and the should be ed permitted into consideration val to take ground except one He cannot ue of the use or hire of the for the assign another different trial court appellee whole time prived which the de Ry., 76 Tex. & Hirsch v. Kimmarle here. 692, objection Goodwin, its Craddock v. 54 use. appellant no made The S. 698. 12 W. appears it Tex. 588. From to us that this evidence, to the character ruling. there was no error the trial court’s placed than far less is the verdict brings assignment This to the us last sus- objection throughout was witnesses. as give IJhe by majority twelfth, opinion as tained disqualification of the witness follows: subject. testimony at all on permitting plaintiff, Wilkinson, supra. “The court erred v. Hudson stand as Paul in his while on the a witness assignment discussing we do not this In testify ques- behalf, in answer own any made to should be reference believe propounded counsel, by his tions own opin- jury, nor the made statements eight- objection, last that: ‘In the defendant’s predicated thereupon; ion in the least was, paid they bigger big, it far een months ques- action in consideration their they price that, than did before over two room them tions discussed commencing June, years ago, the 1st of back subject to review unless per are $35 I about month. 1917. should think way per It not claimed misconduct. is to show The the use at $35 value lasted year year ago ago. there, Prom till about a to the for work. witness about misconduct there trial prices paying big present time are judge was none. found there per month;’ about $40 I think complained of in this having trial testified earlier that assignment in effect is: of an out- did not know such as he prices bigger paid rulings months own, “In last 18 the court its fit having commencing years ago, that —over two permitted before examination an wit- Tex.-) 565 v. GALLAS MONTGOMERY I.W.) (225 780; App. Waller, 600, 110 al. et June, 1917, S. W. Sheriff month. $35 tbe back The value of the use until ago prices first Hail, month lasted at'$35 v. 46 W. 82. S. year year ago. From about recovery may about had for the think be We big paying present are time to the specific property, where the loss of the use work, $40.” think may of such be shоwn reasonable worth being certainty; compensation with is, assignment ab- it Take this hire, upon value, the rental or based it, stract, under says statement destroyed, or the time taken proceeds the the It is not clear. up taking or the of the time destruction he did not know witness testified diligence, when, it could reasonable with o,wn,the value in an outfit such use of as his restored; replaced whether it have was, or been in having permitted an examination replaced, fact, or not. restored seeking rental to establish the the witness note; Lockwood, 532, 32 Bennett v. Am. Dec. team, wagon, and of one value of harness,' suit Higgins Angeles 651, Co., Los 159 v. Gas Cal. over the (N. S.) 313, L. R. 115 Pac. 34 A. 717. having ruled that said witness was think, general also, rule, as a the meas We qualified testify value. as to such rental conversion, taking, ure of go question assignment does not loss, personal property is nr destruction admitted, improperly that the because there was value, worth, its and reasonable at the time legal proof offered place destruction, taking hire of there was no market ordinаrily such value is outfit. s value,” any; “market ha otherwise question, .in more concrete stated permitted to recover the value is proof form, would that where no can be him, of money 45, based on his actual value in an out market use of Brewer, Hillebrant v. 6 Tex. loss. teams, consisting wagons, fit a 757; R., Watt v. Nevada R. 55 Am. Dec. whole, doing engaged in work, 423, 52, 726, 154, 44 Pac. Pac. 46 23 Nev. proper contract to make such .it Rep. 62 Am. 772. St. proof of so as as prove market value because The failure proof certain the entire of the whole there recover. will not is none defeat the separate values for use of each value can be shown Its period, time to it is when put adapted. it is uses to which Land is no I shown there market value? 376, Mortg. Campbell, 98 Tex. W. Co. v. 84 S. believe it done connection with 424; Boyer Ry. L., & F. & T. Lucas St. S. proof, or else to au it would mean 107, 441; Co., 76 W. 97 S. Jones on Tex. person ruthlessly disregard thorize a rights (1913 Evidence, Ed.); 169 Jones Evi § of others and take es Ry. (2d. Ed.) 363 §§ dence Dunman, cape say, liability, and “You cannot heard Special 176-181,19 W. 1073. complain you provе to ket cannot mar since page. called to last attention is Head such, the entire outfit as 45, Hargrave, Ed. 105 U. S. 26 L. 1028. there is no other known to the law for question passing In and you to do do it.”' We not think the court considering of witnesses proof In erred. the absence of the of market juries. great Conqueror, lodged discretion The 510, can resort of the value Sup. 110, 166 U. S. 17 Ct. of the use to him. lost Watt v. Nevada City Louis, Hull v. Ed. L. St. Co., 423, Central R. R. Nev. 44 Pac. Espe 42 L. R. A. Mo. cial attention 40 S. 753. Rep. 46 Pac. St. See Am. called the note. interesting the note for an discussion of the outfit such as damages. rule, law of is not a correct presented case, testimony, in this under the assessing in confine the measure of hardly susceptible of of its mar- horses, to the use of work except adopted, in the ket manner month, day, their hire value and which That we believe is sufficient. our year long period. object for the in viewpoint appear quote clear, shall compensate injury done, view is to appellee, from said: Paul He himself. and the be allowed to into take consideration thе value the use hire and now, the entire and allow such amount “I reasonable value mules know the those, compensate for actual plaintiffs, as will in the condition I saw'them— the such they Antonio,I knowwhat are worth ‍‌​​‌‌​‌‌​‌‌​‌​‌‌‌​​​​‌‌‌​​‌​​‌​‌‌‌‌​‌‌‌‌‌​‌​​​‌‌‍computing not in San whether the rule country, Wichita Palls. I know what our hire, of interest or or value of the of those be the the use mules would use, may adequate seem to them most any ap there, well, contracts. I on never hired , Goodwin, that result Craddock v. Tex. 54 teams, I is from $30 what heard—it 588; 445; Wilkinson, Hudson v. wagon; and for team of mules $35 a month Davidson, App. 588, Hull 6 Tex. Civ. 25 I them the team. man hired fed the don’t know who 1048; Allen, S. W. Hermann v. 118 W. any myself by S. transaction Kittrell, Parlin Orendorff & v.Co. 95 the value the use such I know would people say they Reiley Hopkin’s, mules; just I hear are' 50 what Tex. Civ. (Tex. SOUTHWESTERN 225

566 they year, they hired, mentioned; paying value time for one what mules what fo:r $9,660.00. pay would be The value the use for mules.” have to during per such an outfit would be month $805 ” cross-examination, * * And, * further, period. said stated: depreciation He also states the is about “Yes; suing to recover in this action I am per pеr per annum, 10 for and months Mr. Mont mules of the use of these cent. unlawfully away gomery from me has taken A.T. Griffin also testified: their, deprived I these and mules were per team, wagon, use. me me, worth, “My knowledge opportunity acquiring $35 in use to for the whole contracting harness—for and the value of the use of outfits testimony. my time; no, I sisting mules, 'wagon, that is not wagons, tents, of that said that that’s what water they paying. I said were hiring what and been us- harness has the actual bringing ing the the my the month. during experience mules were such outfits me of such of the use to grading business, What was I know what you Well, I am I can tell got an outfit? getting the use such outfits years 1917, 1918, the state during worth all I would of Texas —these thing. no railroad 1919, commencing day June, In 1917 there was same 1st with the any of, going very kind road contracting little work work; 1917. The value of the outfit of a on— on; going the war mules, some work consisting averaging little of 22 about gotten stopped I these had good condition, most it. high, built, 16 hands well gotten Iif some work ranging years, I could age teams have from 7 to 15 ”(cid:127) * * gone contracting for it. doing around that had been used in work year good road-making but were in about one testifying he has been Here man condition, tents" had been used four contracting or 14 about 13 in years, business year, that had been used one water tank doing using wagons, etc., that kind year, nine sets of harness about time, year, he knows all that states of work had been a little over a used 1917, June, day beginning of time and know the value of riod; my opinion, on 1st mules a team of of the use of value wagon extending present time, I down to used, t.he and then stated such as he had pe- such an outfit perceive wherein he their value. We cannot is mony itself, value would be disqualified testify, or such .testi year period. would For for the entire unobjected to, to be con per month, $9,000. $750 be Texas.” sidered. appellant go noticed that did not It is to be depreciation on He no doubt could witness stand. He also stated very length of fact be 25 have illuminated the issues much; cent. entire of time would not, testimony placed but he nor was did the value Whether their by appellant placed annually witness thé stand instead point interrogated change monthly аs to does not fact thereof; appellee’s appellee damages. use or the market value a case of showed testimony puted. province and undis- uncontradicted to invade the stands We have Besides, of Paul Gal- their of cal- examine method of culation, Henry appellee, Cullam, improper conduct, las, there was absence of grading contractor, who testified he was believed to see which witnesses years constantly entirely, disregarded been and that if there is business, in it in evidence to base verdict sufficient theory. testified: Wilkinson, supra, no instruc- In Hudson my grade contracting “In the conduct of busi- involved, question tion hiring paying ness, I have been judgment mules, wagons, tents, of the trial and the water etc., during wagons, I fact that the on account reversed conducting business, about fifteen multiplying their had reached thorough years, given me this has knowl- days the number edge the use of such outfits. of the use of the used I know what was testified witnesses. years 1917, 1918, outfit in- no such here. The There was commencing 1917.. similar is clear timation that and cases consisting outfit described of 22 use of an mules, built, merely reversed averaging high, about 16 hands well condition, ranging age good rendered an excessive because the had years, making fifteen eleven that had to calculation this seven verdict their contracting doing work in used road- nothing been any manner. there or in There is year, condition, making good about one supports the decisions that correct contention year, a been used for*over four had tents requested support those instructions tank had been used about one water year, propositions of law. been nine sets of harness that had used province invade the not g.s far so year, for the of time be- little over upon tell what to base to them June, 1917, ginning on the 1st of and extend- their what not. verdict time; yes, ing present to down statement of the sheriff The return ‘and an outfit Tes.) GARNER v. DAVIS 1.w.) (225 subsequent purchaser in of to value of tlie seized when at a time they stated were not in market this ease was admissible. There was held land, pur- but that he did not show it to testimony, this, of other witnesses as besides ' chaser, though city property, he did show her “outfit,” to value trial and the finding held not to sustain a verdict disregard court could not any to instruct them procuring sale, cause of the evidence, upon phase nor what this through purchaser’s brother some permitted to,go of all the evidence the court tijne thereafter. reaching Suppose before them in we eliminate verdict. <&wkey;60 2. Brokers to —Entitled commission one or procuring purchaser though sale not any two the witnesses for the reasons summated. stated, necessarily lead not us Generally, procured a a broker has who judgment, to because the verdict reverse this purchaser ready, willing, purchase and able to upon jury, is not some calculation of the satisfactory on terms to the own- proof, full extent the entire er, or the terms stated to the broker nor lead to the deduction that dis- compen- listing, the time of is entitled his They could, making sation, though believed of them. the sale not is consummated up verdict, for some cause fault all the not attributable to the their consider stipulation broker, is a unless phases, apply in per various then heavier employment the broker’s cent, contract of depreciation, add any discount for contrary. interest, cost, or eliminate items <&wkey;53 full other reasonable deduction less 3. Brokers —Services not “efficient procuring But amount claimed testified about. cause” unless sale results greatly proof, broker’s efforts. because it less than the is pro- jury adopted figure, To make the broker the “efficient and because the lowest curing cause” of the sale so as to entitle him nothing is plain, of which can com- commission, to his it is essential that it re- whole if on the ease there efforts, introducing sult from his for a to sustain the verdict lesser sufficient purchaser seller, advertising, giving might require a amount. It consideration customer, showng seller the name of the its excess the verdict thereof as to had purchaser premises. reached full measure of the evidence. definitions, [Ed. Note.—Eor see Words evidence, therefore, legal There Phrases, Series, Eirst and Second Efficient verdict, whеther we record to sustain Gause.J appellee, considered <&wkey;>86(l) 4. Brokers held —Evidence connection with the other witnesses. Land purchase through show that another Campbell, Mortgage Co. v. defraud broker. W. 424. commission, In an action for a broker’s evi- not so material now whether purchaser purchased dence that the malice was clear enunciation erty through over it brother, her who been shown not, in such cases the ease is the law broker, paid ahd that she reversed, appellee oppor- property previously will have an with father, property from her obtained tunity pleadings supposed also who had over the amend his shown the'broker, nothing creates more definitely necessary; more the is- submit suspicion purchase than a mere jury. plead- Under the sue of malice ifigs made to defeat the of the broker to should have been submit- and evidence it arid commission is insufficient sustain form. ted in some ground. verdict broker on that point portion Appellee out what does judgment he thinks we should cause Apрeal Court, Gray County; from District part to him affirm. remit There Ewing, Judge. W. B.. nothing can of remit- the basis do against Action G. C. C. Davis D. Gar- appellee titur, set out Judgment plaintiff, ner. willingness any part to surrender there- appeals. Reversed and rendered. naming of, the sum. Clarendon, appellant. Link, W. T. Kimbrough, nry agree with Brethren in I cannot n Underwood, Simp- & Jackson case; disposition make of this there- Amarillo, son, appellee. my dissent and nonconcurrence. fore enter HALL, Appellee, Davis, J. a real estate against appellant broker, filed this suit 1707.) alleged (No. DAVIS. GARNER v. recover commissions to be due belonging Appeals of certain sale lands (Court of Texas. Amarillo. of Civil 1920.) alleges appellant. that.ap- Nov. He in substance pellant authorized him to sell lands at <s&wkey;86(4)—Evidence held I.Brokers per acre, obligating pay plain- himself to $15 finding procured broker ‍‌​​‌‌​‌‌​‌‌​‌​‌‌‌​​​​‌‌‌​​‌​​‌​‌‌‌‌​‌‌‌‌‌​‌​​​‌‌‍cus- sustain tiff a commission of 5 the sale tomer. exchange, price thereof, Testimony by the event he the broker that he showed brother, father, purchaser and husband land to find to whom a sale or topic Key-Numbered Digests

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Case Details

Case Name: Montgomery v. Gallas

Court Name: Court of Appeals of Texas

Date Published: Jun 1, 1920

Citation: 225 S.W. 557

Docket Number: No. 6419.

Court Abbreviation: Tex. App.