*1 Tex.) WAREHOUSE PORT WORTH & STORAGE CO. y. PITTMAN (258 3.W.) dearly charge &wkey;>94(5)Legality 4. Carriers that some Legislature intended made of — by dray hold transportation company for of house- conditions notes under lien vendor’s goods jury. held for the years longer period four have should In dray company an action barred, being statute should to run before plaintiff’s conversion of household pro- The Constitution construed. be so holding drayage, which it was of equal, shall be uniform and vides laws held, the charge apply dass of vendor’s to one and notes a plaintiff’s of general statute different goods jury. should been submitted to the legislation. of least savor class would at class January 1, <&wkey;>l8l— maturing requiring 5. objection The notes Trial Statute charge limita- to applicable of statute were in- barred peremptory March, filed the suit was tion when rendering judg- 59, requiring objection c. the trial court charge being given court’s to be made before having appellant tender- ment thereon. inapplicable the struction. is note, last appellee full amount ed fees, attorney’s interest, costs prindpal, court, therefore is trial in the Appeal <&wkey;230Appellate 6. and error court — this cause ment of reformed, assignment held authorized to consider of er- allowing appellee 'peremptory ror as prin- though appellant not made be-’ given. attorney’s fees due at interest, fore cipal, maturing special charge Where submitted a trial on note date plaintiff’s pay which called court’s costs January 1,1919, and that claim involved was entitled to have the issue appellee all other of the trial court to the costs. concluding that the court reformed instruction for defendant was affirmed. er, filed motion for new trial set- ting up ground, it such was sufficient to author- plaintiff’s assignment ize consideration of peremptory charge, error as to the WAREHOUSE WORTH FORT 1612, though in view art. 10447.) Rev. St. did (No. CO. STORAGE submitted, before it was exceptions and did not reserve giving bill of (Court Appeals Texas. Fort Worth. of Civil Rehearing thereof. Denied Dec. 1923. 1924.) Jan. <&wkey;9f— obligated Í. Owner not Carriers <&wkey;l Damages Damages where house- 7. 05— goods ceive tender of after conversion. through negligence goods hold lost are based damages for conversion of In an action reasonable dray company goods household to move er the goods are lost Where household plaintiff’s belongings, that aft- negligence, the measure what taken, goods refused goods in, tendered, either out of court or when not version, lost, destroyed, what the or but were con- such her from worth to the con- since, put having at the time. were in goods converted, replacing she was not the accept Damages arriving &wkey;>188(2)— obligated Method of tendered there- 8. or secondhand household lost value of after. destroyed. <&wkey;22 Trover and conversion —Tender or furniture household Where secondhand mitiga- defense admissible wholly wearing apparel are or tion of verted, their Tender to take into consid- of loss at the time preclude recovery does not the extent eration óf their circumstances, as, where under some the con- or out of their worn whether technical, mistake, or result of version time, at the and from these facts condition the tender is admissible of dam- their value. determine ages. Damages < n »188(2) Unnecessary — &wkey;>188Dray company 3. Carriers bound — the want of comply with contract before entitled to destroyed. haulage. prove the dray company action household value of secondhand market conversion of wearing apparel in make the plaintiff’s value. actual available from one house to house to which she was them the Court, Appeal Tarrant Coun- from District obligated moving, contract to fulfill Young, Judge. ty; before was Bruce Key-Numbered topic Digests and Indexes
ife=3For
in all
other eases see same
and KEY-NUMBER
258 S.W. —70
*2
large
contents,
$2,000,
by
and
Pittman
tbe
valued at
and one
Action Mrs. Mazzie
Company.
Storage
(record
mines)
&
Fort
AVarehouse
file
Worth
Miami
valued
she
alleged
ap- $500. She
plaintiff
the reasonable market
and
for
peals.
value of such
was
when the
effects
converted
remanded.
so
Reversed and
$2,831.85.
on
trial
presented
But
Worth,
Stewart,
Hunter,
of Fort
Hunter
files were
to her
letter
appellant.
stand,
while she was on the
she said:
witness
Marshall,
appel-
Young,
William F.
letters,
my
“These are
dead husband’s
and
lee.
going
Whereupon
keep
I am
them.”
that
would
announced
she
eliminate
BUCK,
Pittman sued the
&
Mazzie
J. Mrs.
$2,000
from
her
claimed
Storage
Com-
AVarehouse
Fort AVorth
files;
apparently
for the three letter
also she
alleging
corporation,
pany,
“large
(record
waived
file
February
on
she
that
mines).”
only
Miami
Hence there weire left
company
her furniture
to move
defendant
articles, amounting
the claims for
other
Magnolia
avenue to
St.
West
alleged
$331.S5.
She further
that defend-
Worth,
city
avenue,
and
Fort
Louis
including
agents,
general manager,
ant’s
its
employment
the defend-
such contract of
very ungentlemanly
had been
and
rude
agreed
company
furni-
to move her said
ant
her in
connection
conversations and
blemish,
injury
carefully
ture
and without
controversy,
conduct had as
asked
and she
only
expeditiously,
her
and
and
exemplary damages.
$3,000
moving van and three em-
$4 an hour for the
gen-
by way
The defendant answered
they
ployees;
agreed
furni-
to move said
special exceptions,
eral demurrer and certain
she directed
her
it as
ture and
home;
general denial,
specially pleaded
a
it
and
her household
that some of
awas
common
carrier
the laws
very
quality;
mahogany
fine
and
were
that while
Texas,
state
and
on the
moving
furniture the defend-
said
transported
payment
it for the
negligently
carelessly
ant
same,
handled
and
charges;
retained the
al-
injured,
many
broke,
damaged
and
and
leged
purpose
to be
converted
pieces,
pieces;
and
rollers of other
lost the
collecting
charges,
alleged
which it
was unneces-
defendant
alleged
reasonable and
It further
sarily
moving
and
slow
said furniture
effects,
household
was
and took more time than by it,
ready
repair
and
stood
charged
necessary,
and
her
jured
damaged,
but that the
work,
for 8
was
excessive.
hours’
fused to
and refused
they
alleged that
did not move
She further
permit
repair
A
man to
enter her house.
effects,
all of
and household
her furniture
further
was
defendant
but left a
on
considerable
alleged
for certain barrels and
to have
boxes
avenue,
Magnolia
she
afterwards had
several
furnished
months before
parties;
have removed
occurred,
the transactions heretofore recited
company,
fraudulently
defendant
extend the
intending
when she was
Fort
remove
removal,
for such
carried
Worth,
goods packed
and
her
wanted
back from her house
some of her furniture
proper receptacles. As to this last-mentioned
the house on
on St.
charge,
Louis avenue
claimed that the boxes
avenue,
thus hauled such
and
more than and barrels
her
had been furnished
once.
purpose
She further
when the de-
packing
her
and that when
load,
stay
the last
she determined to
Fort AVorth
had been
same
unloaded and move to
avenue the
St. Louis
according
house,
to the con-
general manager,
told
Xilaced
her that
tract,
payment
demand
charges
there
barrels,
were no
such boxes and
the claimed hours’ time used in
that when
moved
her house-
effects,
get
furniture and household
that hold
men could
boxes and
placed
she
insisted that the
her
return them to
barrels and
the warehouse.
then,
agreed,
house as
paying
She
charge
insisted on
the reasonable
exorbitant,
charges
boxes,
offered
use of the barrels and
agreed
$25 of said amount and retain $7 of
finally
and it
was the
damaged
until
furniture amount.
repaired by
company,
trial, plaintiff
testimony, by
defendant
On
offered
repaired,
witnesses, tending
could
but defendant
have the same
herself and other
petition
allegations
refused to
took the last
do
her
as to over-
load
and household
effects
items of claims
contained
warehouse,
the same to its
and converted
therein. On
defendant
own use and
list
benefit.
of household
articles of household
into court certain
goods alleged
effects
defendant are one
were the
which it claimed
gas range stove,
$105,
by it,
valued at
one lawn
have been converted
tendered them
mower,
etc.,
hoe,
garden utensils,
rake,
get
plain-
Defendant tried
chair,
them,
identify
but,
one
child’s
three letter
on
files tiff
advice of coun-
Tes.)
FORT WORTH
WAREHOUSE & STORAGE CO.
HOT
i.w.)
(258
sel,
tender,
had been
had
right
being paid
insist
goods.
the value.
identify
them as her
The actual return of the
horse
the conclusion of
court
tiff’s stable
without his assent was a matter
charged
find
legal consequence.’ Again:
‘It was mat
verdict in
the
*3
ter of no moment to the
what became
plaintiff’s pe-
in
cause of action set forth
original illegal taking.
the
horse after the
tition,
find for
the defendant
Replacing
the animal in the
stable
plaintiff judgment
the
the
nugatory act;
without his assent was a
it could
carrying charges
operate
prejudice
$32
item of
drayage
no more
any
might
the
disposition
which the
barrels and boxes.
the
The court
property.”
have made of the
judgment
entered a
in accordance with the
verdict
returned
the
this
See,
also,
Cyc.
King
38
Bank
judgment
appealed.
plaintiff has
[1,2]
opinion
We are of the
p.
Cyc.
(d),
In 38
subd.
is said:
it
instructing
court erred in
a verdict
general rule,
an
“As
offer to return
the
and in
the defendant as erty converted is not
in
admissible even miti-
to her claim for
in in
and also
gation
is-
the conversion
result of a mis-
structing
a verdict for the
which de
technical, inadvertent, or
the
still
fendant claimed were due it for the
and
take,
property
quo,
in
statu
an
drayage.
The fact that the
aft
may
mitigation
it
in
offer
return
be shown
er the
damages.”
were taken
to he
the
point,
Meyer,
this
in Miss.
Mills
the
when tendered either out of court
etc,.
83
18
our
necessarily preclude
inor
her from
would not
Court had under consideration a case involv-
for such conversion.
If
writ,
under a void
seizure
taking
the
unwarranted
the first
of-
held
be a conversion. Evidence was
place, and while the defendant held the
subsequent
fered
of the void-
to the issue
goods,
even
it
be said that
property thereunder,
writ and-seizure of the
held them for the collection of its
holding
secured,
proper-
and while the officer was
the
only,
the
had been to the
ty,
levy
a new
and a
valid writ was
buying
goods, including
stove,
the
nec
made thereunder.
testimony
court held that
the
'The
essary
living
family
herself,
levy
as
the second
admissi-
place
goods taken,
and to take the
of the
mitigation
damages.
In 26
L.
ble
R. C.
obligation
would be under no
the
pp.
seq.,
1110
author discusses
et
the
the
thereafter,
especially
those
question of trover and conversion. And on
required
which she had been
to re
page
it is said:
1113
place.
already
She had
filed suit when the
tender was made.
“When an
actual conversion
generally
place,
owner
under no
the
“It has been
held that
tender cannot be
obligation
by
a tender
to receive them back
pleaded
such,
after
made
but that
for leave
due, together
suit
be
wrongdoer, and,
the
even
tender
defendant must move the court Ije
owner,
accepted by
generally
this
so much as he
admits
be garded
as no bar to
action.”
costs,
with all accrued
and that
money may
in on the co.urt’s
Dakota,
also,
See,
of North
State
Use
order and the amount struck from the com-
Robb-Lawrence
17
of Hart-Parr Co. v.
plaint.”
p. 632,
26 R. O. L.
§ (N.
p.
S.)
N. W.
L. R. A.
D.
Ashcroft,
In Weaver v.
for a further
discussion.
is said:
law well.settled
goods wrongfully
posses
“Whether
sheriff
took
was,
the re-
think, verted
another does
sion of the entire stock of
mainly
we
question
covery
damages, although
did,
under
cir-
fact.
If he
some
complete,
conversion was
fact
he
aft-
admissible in
cumstances
evidence is
erwards tendered back the
aor
thereof,
respon
Mm
does not relieve
from full
[3-5] In the instant case the evidence of
sibility. -
A tort
cured
a tender with
shows
the defendant com
acceptance.
Chase,
Gibbs v.
10 Mass.
pany
had
Vosburgh Welch, 11
Johns. 175. The effect
from one
but to
such tender and refusal
is discussed
Jus
moving.
house to which she
them the
This was a
Wilsey,
tice Bronson
Hanmer v.
17 Wend.
contract,
case was one
91. The
where horse
of the
and which
was seized
illegally issued,
attachment
and on the part
have to be fulfilled
the de
discovery of this fact the constable returned
would be
to its
entitled
stable,
owner,
the horse to
notified the
Furthermore,
think the evidence was con
we
to receive
who refused
in
him. In that
as flicting as
the amount of
defendant’s
plaintiff had,
proffered
against plaintiff
hauling,
claim
it was
legal
return,
proceedings.
says:
commenced
He
legally
entitled. There was evidence
independent
‘But,
of the fact that
time had been consumed
legal proceedings,
had
tiff
commenced
agent
hauling;
kept
mitigating damages.
ground
defendant’s
The horse
'
gas range
tions to the
of such
Article
van and had returned
1612,Rev. Statutes.
house to
St. Louis avenue
with it
once,
We think
least
avenue house
manager
by
trial;
the defendant as
was admitted
ques against
plaintiff’s claim,
during
and other
instructing
involving
by
to return a verdict for
tions
for which
defendant for
judgment
was‘rendered. Therefore
at
goods,
reversed,
ought
ment
the
the trial court will be
think
which we
jury. Appellee
cause
not in-
remanded
new trial
in its brief
submitted to
opinion.
reversing
consistent
this
court is
authorized to
judgment
the
construed to
ing
trial court
consider
erred
against her,
claim that the
*4
preclude plaintiff
from recover-
instruction
a
exception
exemplary
if
be recov-
shown to
no
for the reason that
erable.
The case of
was
Harlan
to this
reserved
Sanitary Flooring
v.
Acme
ap
Appeals,
Commission
Appellee [7-9]
no
evi
proved by
Supreme Court,
un
holds
probative
appel
support
force
dence
59, requir
Legislature 1913,c.
der
lant’s suit for
to
goods
failed
before
show the
reasonable
by appellee,
per
applicable
is not
show
Haley,
emptory
Walker
Hence,
no
had market value.
that
that
to
Tex.
214 S. W.
show that she was entitled
she failed
said;
Court
damages for
conversion. She
new,
price,
‘charge
testified
lowest cost
when
act
“The
court’ with which
deals,
of
charge applying
market,
the facts
law to
is a
in the local
of some of these
jury’s guidance,
and testified to the wholesale cost of the
supposed
end,
which for
errors
were tak
leaves
a table which
open
no
reference
to correction.
by appellee.
en
rule
as to the measure
verdict,
leaves
to a direction of
jury
to
for household
therefore,
subject,
province,
with no
negligence
of a
or taken
the
him,
charge;
is nbt
influence
what secondhand
any
sense,
‘charge’
hut
true
at all in
sustaining
but what the
effect to the
means
which,
evidence;
lost,
if
er-
or taken were
demurrer
roneous
in the
taken view as
all,
so,
defect
because
at
the condition
direction,
mis-
the court’s
because of
but
time. Where
at
proof.”
to the effect of
apparel
wearing
household furniture
wholly destroyed,
convérted,
proper
Kirlicks,
See, also,
110 Tex.
Decker
at their
Byrd,
385;
110 Tex.
Shumaker
W.
216 S.
of the loss
into consideration
is to take