Hull v. Davidson ( 1894 )

Suit brought February 20, 1890, with a writ of sequestration, to recover a certain sorrel mare or her value. Judgment in the County Court for $135, from which this appeal is prosecuted.

Among the defenses relied upon by the defendant Hull was the plea of two years limitation. To this the plaintiff replied, "that the animal in controversy was stolen from the plaintiff herein in the fall of 1887." It appears from the plaintiff's testimony, assuming the identity of the animal sued for with that claimed by the defendant, that she was missed from her range in Young County about October 1, 1887; that she had never before that time attempted to run astray; and that the plaintiff failed to notice the animal in the list of estrays published in the Dallas News, whence the plaintiff drew the conclusion, to which he testified as a fact, that the animal had been stolen at the date named.

For the defendant, the evidence is undisputed, that one Manges Goode was in possession of the mare, using her openly and claiming to be her owner, as early as the year 1887; that as early as January, 1888, and probably before that date, he sold the mare to one Samuel Wright, and that from Samuel Wright, through mesne transfers, the defendant bought the animal for a valuable consideration, claiming and holding her notoriously and adversely at the date of the institution of this suit, during a period more than sufficient to meet the requirements of the statute pleaded.

The charge of the court, as we read it, was so framed as to instruct the jury, in effect, that if the mare in the first instance was stolen, the defendant's plea of limitation, or his title dependent thereon, was tainted, though he and his vendors had held the animal in good faith for a period of more than two years before the bringing of the suit. This instruction we hold to be erroneous. The evidence will not permit us to indulge the inference that the defendant and those under whom he held for two years before the date of the suit were in any way connected with the theft, if it existed, of the animal. Munson v. Hallowell,26 Tex. 475; McDonald v. McGuire, 8 Tex. 361 [8 Tex. 361]; Huntsman v. Jarvis, 17 Tex. 161 [17 Tex. 161]; Winbourne v. Cochran, 9 Tex. 123.

Under the facts of this case, we think that the proper measure of damages to be applied was the market value of the mare at the date of conversion, with legal interest from that date. The evidence discloses no peculiar features connected with the use of the animal which would require the application of an exception to this rule and the assessment of special damages. Gillis v. Wofford, 26 Tex. 76; Craddock v. Goodwin,54 Tex. 578. If, however, it was proper to consider as a measure of damages the value of the use and hire of the mare, this hire should not be computed by the day, as was done on the trial below. Hudson v. Wilkinson, 45 Tex. 444.

For these reasons, we reverse the judgment and remand the cause.

Reversed and remanded.