Needham Piano & Organ Co. v. Hollingsworth, Bullington & Co. , 91 Tex. 49 ( 1897 )

GAINES, Chief Justice.

This was an action of debt brought by the plaintiff in error against the defendant in error, in which an attachment was issued and levied upon a stock of pianos, organs, etc., the property of the defendants. The defendants pleaded in reconvention that the attachment was wrongfully sued out, and claimed damages for the Seizure of their goods. Upon the trial the plaintiff recovered a judgment for its debt, but the defendants recovered damages under their plea in reconvention. Upon appeal by the plaintiff" the judgment was affirmed in the Court of Civil Appeals.

We granted the writ of error solely upon the ground that under the undisputed evidence in the case the verdict for the defendants was excessive. The damages assessed by the jury were for §3483.57, and depended upon the testimony as to the value of the goods. The petition for the writ of error purported to point us to all the testimony in the record bearing upon the question; and from the pages of the transcript referred to it appeared that each of the defendants testified that the goods were worth at retail §6808, and that four other witnesses placed their value at about §2239.35. The value at which a stock of goods may be sold at retail, standing alone, in our opinion, does not afford any sufficient basis for determining their market value. The market value is what the goods could have been promptly sold for in bulk or in convenient lots. Between the prices at which goods may be obtained in a market and at which they may be sold at retail in the same place, intervene time, expense and profit—which, in the absence of proof, are unknown quantities, and hence, if there had been no other testimony-save that pointed out in the petition for the writ, we would be still of the opinion that there was no evidence to justify the verdict for the defendants to the amount recovered by them. But counsel for the defendants in error in argument have referred us to other parts of the transcript which, in our opinion, disclose legitimate evidence tending to show that the market value of the goods exceeded the amount recovered. If our attention had been drawn to this evidence, the writ of error would not have been granted, and we think it would serve no useful purpose to discuss the matter further.

The Court of Civil Appeals found the evidence upon the point conflicting and concluded that it was sufficient to sustain the verdict. Since there was evidence to support the finding it is conclusive upon us.

There being no error in the judgment of the trial court nor in that of the Court of Civil Appeals, they are affirmed.

Affirmed.