Morris v. Coburn , 71 Tex. 406 ( 1888 )

Collard, Judge.

When a suit is brought, as in this case, for specific property, the judgment should be for the recovery of the property and in the alternative for its value. (Blakeley’s administrator v. Duncan, 4 Texas, 184, Cheatham v. Riddle, 8 Texas, 168; Hoeser v. Kreaka, 29 Texas, 450.)

The court below gave judgment for the value of the property only. There is no complaint by either party on this ae= count. The suit was for a cow and her increase, to wit, a calf and a two year old. It seems when the cow was taken into possession by defendant Morris she was about thrée years old. Plaintiff claims that he is entitled to the value of. the cow and her increase; defendant claims that plaintiff is only entitled to the value of the cow at the time he took her into his possession, and that the increase would be his. It is not pretended that defendant had any title to the cow, and the court found as a fact that his possession was not sufficient to give him title by limitation (and no limitation was pleaded). We conclude that as the cow was the property of Coburn all the while she was in the possion of Morris, her increase would be his property. (Sedg. on Dam., 431-433, note “C.”)

In such a case the value of the property at the time of appropriation would not be the correct and just measure of damages. Such value would exclude the increase altogether. When specific chatties are sued for, the value at the time of the verdiet, or where there is a writ of restitution^ at the time of refusal to comply with the writ by defendant, would be the proper value to be assessed. The appellant asks us to hold the time of conversion to be the time when the value should be assessed. If Coburn had sued for damages for conversion of the cow, this might be the rule. Plaintiff did not sue for damages for a conversion of his property, but the property itself, and he was entitled to his property or its value at the time of judgment. The court did not award him the judgment he was entitled to, but awarded his alternative right, the value of the property. The judge did not assess the value at the time of the judgment, but at the date of the institution of the suit. For aught that appears in the record, the judgment was for a less amount than it should have been. It is probable the growing cattle would have been worth more at the time of trial than at the institution of the suit. (See cases already cited; Sedg. on Dam., 481, 433, note “C;” Buckley v. Buckley, 12 Nev., 423.)

There is nothing in appellant’s proposition that the court styled the two year old a yearling. The judgment was evidently for the value of the cow and her increase. We are of opinion the judgment ought to be affirmed.

Affirmed.

Opinion adopted October 16, 1888.

Stayton,

Chief Justice.