Early-Foster Co. v. Mid-Tex Oil Mills , 1918 Tex. App. LEXIS 1380 ( 1918 )

Findings of Pact,

JENKINS, J.

1. On December 14, 1915, the appellant and appellee, each of which is a private corporation, entered into the following contract:

“Waco, Texas, 12/14/15.

“Mr. N. K. Smith, President Belton Oil Mills, Belton, Texas — Dear Sir: It is agreed between Early-Poster Company and Mr. N. IC. Smith, president of Belton Oil Mills, Bartlett Oil Mills and Granger Oil Mills, that Early-Poster Company shall advance Belton Oil Mills, for 60 to '90 days at 8 per cent, interest, 5 cents per pound on 100 to 500 bales cotton linters, same to be shipped via Katy, flat, to Early-Poster Company, Waco, care Exporters’ & Traders’ Compress & Warehouse Company, from Belton, Bartlett or Granger.

“Belton Oil Mills shall pay the insurance charges on the linters; they however to be covered by our blanket policy at full value; and you shall pay any compress and storage charges on the linters. ,

“The linters shall be invoiced to us not as a sale, but on an advancement invoice. If they are sold for 5 cents per pound or more, the difference shall be paid to you, less the charges due on same, but if they are sold for less than 5 cents you shall pay us the difference, together with charges due.

“In order to avoid any bother, we will both sign this agreement; and will thank you to sign and return us the original.

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“Early-Poster Company,

“[Signed] W. M. Poster.

“Accepted:.”

2. This suit was filed May 26, 1916, for the alleged conversion of 400 bales of linters shipped^fco appellant by appellee under said contract.

3. The case was submitted to a jury on special issues, as follows:

“First Question. Did the Early-Poster Company sell the 400 bales of cotton linters in controversy prior to the 24th day of February, 1916?

“The burden of proof is upon the plaintiff to prove the affirmative of this issue by a preponderance of the evidence.

“Second Question. Did plaintiff herein agree with the defendant Early-Poster Company that the said defendant could sell the linters delivered to it and at the maturity of the contract herein substitute other linters of like grade therefor?

“The burden of proof is upon the defendant to prove the affirmative of this issue by a preponderance of the evidence.”

“Fifth Question. What was the highest market value of the linters in issue between February 24, 1916, and May 26, 1916?

“In answering this question you will state the aggregate amount in dollars and cents found as the value of said linters.

“Sixth Question. Did the defendant, in substituting other linters to plaintiff for and in lieu of plaintiff’s linters sold by the defendant under a mutual mistake, deliver to plaintiff linters of a higher grade than those received by it from plaintiff?

“The burden of proof is upon the defendant to establish the affirmative of this issue by a preponderance of the evidence.

“If you answer the sixth question in the negative, you need not answer the seventh question. If you answer the sixth question in the affirmative, you will answer the seventh question.

“Seventh Question. What was the difference in the market value at the time of the redelivery of the linters previously received by defendant from plaintiff, and those substituted therefor?”

The jury answered said interrogatories as follows:

“Answer to First Question: Yes.

“Answer to Second Question: No.

“Answer to Fifth Question: 7½ cents. $15,-976.12.

“Answer to Sixth Question: No.

“Answer to Seventh Question: -”

Special issues 3 and 4, with the answers thereto, are omitted, as not being material to the issues involved on this appeal.

The evidence sustains these findings.

. - Opinion.

The first and second assignments of error complain of the action of the court in permitting the witnesses Smith and Claiborne to state how they knew the market value of linters at the times stated by them. This testimony was admissible. No objection was made to their stating the fact as to such values. In order to determine what weight should be given to their testimony, it was proper to Inform the Jury as to their means of knowledge.

The only objection to this testimony was that it was immaterial. If this was true, unless it appeared from the nature of the question asked that its answer would be prejudicial to appellant, overruling such objection would not have constituted reversible error. Except under the circumstances stated, the objection that the testimony is immaterial, irrelevant, and incompetent is too general to form the basis of an assignment of error. Ry. Co. v. Smith, 50 Tex. Civ. App. 10, 108 S. W. 998; Sigafusi v. Porter, 84 Fed. 435, 436, 28 C. C. A. 443; 1 Wigmore on Ev. p. 58.

In Sigafus v. Porter, supra, the court said:

“The stock objection ‘incompetent, irrelevant, and immaterial’ covers a multitude of sins. There is hardly an objectionable question but what can be classified under one or other of these heads. Sometimes the real * * * objection is so plain that the general phrase will be quite sufficient to indicate it; indeed, it may bo quite apparent without any statement of the grounds of objection at all. But there are many other objections which rest upon some particular theory of the case, or upon some single fact in proof, which a judge may readily forget in the course of a long and intricate trial. It is only fair in such cases to require counsel to state clearly to the trial judge on what ground it is that they object. Certainly it is not fair to allow such a dragnet as ‘incompetent, irrelevant, and immaterial’ to be east over every bit of evidence in the case which counsel would like to keep out, and then to permit counsel, upon careful analysis of the printed narrative of the trial, to formulate some specification of error not thought of at the time, and which, if seasonably called to the court’s attention, might have been avoided or corrected.”

The third assignment of error complains of the refusal of the court to permit appellant to prove that the expression, “60 to 90 days,” meant, in the usage of the trade, that appellant had the right after the expiration of 60 days to demand of appellee additional security for the money advanced, if the market in the meantime had declined; and, in the event of the failure to furnish such security, to sell the linters and apply the proceeds, or so much thereof as was necessary, to the payment of the money advanced. If such be the fact, it was immaterial to any issue involved in this case, inasmuch as appellant sold the linters before the expiration of the 60 days, and without demanding additional margin.

Appellant’s fourth assignment is. as follows:

“The court erred in submitting to the jury special issue No. 5, as follows: ‘Fifth Question. What was the highest market value of the linters in issue between February 24, 1916, and May 26, 1916?’ Because said question submits to the jury an erroneous basis for the purpose of fixing the measure of damages.”

The fact, if such be the fact, that the highest market price of the linters between February 24, 1916, and May 26, 1916, was! not appel-lee’s measure of damages, would not constitute the submission of such special issue reversible error. In such case the answer of the jury would be immaterial, and should be ignored by the court in rendering its judgment.

When a case is submitted on special issues, the submission of an immaterial issue is not reversible error. Krenz v. Strohmeir, 177 S. W. 181; Kelly v. Ward, 94 Tex. 292, 60 S. W. 311; Ins. Co. v. White, 177 S. W. 165; Petroleum Co. v. Dinwiddle, 182 S. W. 446.

If, however, the market value at the dates submitted by the court was not the proper measure of damages, and the court based its judgment on the highest market price within those dates, and it so appears upon the facei of the record, we think this would be fundamental error.

The judgment of the court was based on this finding. Was this error? We think not. Where the conversion is not attended with fraud, willful wrong, or gross negligence, the measure of damages is the value of the property converted at the time of such conversion, with legal interest thereon to the time of trial. But where the conversion takes place under either of these circumstances, and the property converted is of changing value, the measure of damages is the highest market value of such property between the date of conversion and the filing of the suit. Bayle v. Norris, 134 S. W. 773; Witliffi v. Spreen, 51 Tex. Civ. App. 544, 112 S. W. 98; Ripy v. Bess, 55 Tex. Civ. App. 492, 118 S. W. 1084; Ry. Co. v. Starr, 22 Tex. Civ. App. 353, 55 S. W. 395.

Thus, for the reason that, where one’s property has been wrongfully taken by another, it does not thereby cease to be the property of the owner; and he may recover such property, if he can find it, even from an innocent purchaser for value, if it be not a negotiable instrument; or he may abandon his title to the same, and recover its value. In such case, the wrongdoer will not be entitled to the advantage of the fluctuation in value, but will be held to the highest value between the time of his wrongful taking apd the filing of the suit, for the reason that he has deprived the owner of the opportunity of obtaining such price. The law will not allow a wrongdoer to speculate as to whether or not, but for his wrongful act, the owner would have sold on such highest market.

If this is true as to a conversion by a willful trespasser, as is held in the cases above cited, a fortiori it should be true where one has eome into possession as bailee, and, while holding it in trust for the owner, violates such trust by selling the property, and placing it beyond the reach of the owner, as was done in the instant case. Appellee placed the linters in possession of appellant, and borrowed money on them, because he wished to hold them for a higher market. When the market rose and it offered to pay appellant the money it had borrowed on the linters, it found that they had been sold and shipped out of the country. Damages are based on compensation. Field v. Munster, 11 Tex. Civ. App. 341, 32 S. W. 417 et sea., and authorities there cited; Muenster v. Field, 89 Tex. 103, 33 S. W. 852. Nothing less than the price which it could have obtained for its linters, but for their wrongful conversión, is compensation to appellee.

Appellant’s fifth assignment is as follows:

“The court erred in rendering judgment herein for the $6,215.38 by reason of the fact that the said amount included $1,235.44 interest, when it should only have included $385.11 interest, the court having calculated interest on the whole amount of $15,976.12 from the 24th day of February, 1916, as found by the jury in answer to special issue No. 5, whereas, it should have calculated the interest from the 24th day of February 1916, on the difference between said $15,979.12 and $10,996.18, which plaintiff’s pleadings and the uncontradicted evidence showed was the amount of advances made by defendant, Early-Foster Company, to plaintiff, including interest to March 12, 1916, the date of tender by plaintiff to this defendant, and other proper charges under the contract.”

We sustain this assignment. The theory upon which the trial court rendered judgment was that appellee was entitled to legal interest on the value of its property from the date the suit was filed to time of trial; that appellant was not entitled to interest on the money it had loaned appellee after a tender of same, which was made by appellee and refused by appellant. Either of these propositions, taken alone, is correct. But the fact remains that appellee, when it made the tender to appellant, had, and still has, the money which appellant advanced to it. Had appellant settled with appellee at that time, as it should have done, appellee would have received, not the value of the cotton converted, but that amount less the amount that it had borrowed from appellant. The difference between these sums was the amount of the damages it suffered by reason of the wrongful act of appellant in refusing to account for the value of the cotton; and its subsequent damage is such difference with legal interest thereon.

For the reason stated, the judgment of the trial court is here reformed so that appellee recover of appellant $5,361.05, with interest thereon from the date of the judgment at the rate of 6 per cent, per annum, instead of $6,215.38, as adjudged by the trial court.

As thus reformed, the judgment of the trial court is affirmed.

Reformed and affirmed.