Sheffield v. Meyer , 1921 Tex. App. LEXIS 70 ( 1921 )

The plaintiffs in error complain of the giving of the peremptory instruction to the jury. On the former appeal of this case (208 S.W. 679) it was determined by the court that the evidence was legally insufficient to support the verdict against the plaintiff, who is now the defendant in error. That decision manifestly influenced the ruling of the trial judge in the present trial, for he charged the jury as follows:

"The law of this case on similar facts has been declared by the Court of Civil Appeals on a former appeal. In the light of that opinion the court now believes that there are no facts that show that Joe Meyer, the plaintiff, had notice that the deed to Harris, if a mortgage, was known by plaintiff to be a mortgage. I therefore instruct you to return a verdict for the plaintiff."

Defendant in error's brief states, and the record bears out the statement, that —

"The testimony given on the trial from which this writ of error is sued out was identical with the testimony on the trial from which Joe Meyer appealed and the Court of Appeals at Dallas held as aforesaid. * * * The law of this case was settled on a former appeal."

It is believed that this court should follow the decision on the previous appeal, as the trial court did, because the decision settled the "law of the case" applicable to the same facts. 2 R.C.L. p. 223, §§ 187, 194: Frankland v. Cassaday, 62 Tex. 418; Bomar v. Parker, 68 Tex. 438,4 S.W. 599.

The question, though, of a claim for improvements was not determined on the former appeal, and may be determined in this review. Looking to the record, it appears that a claim for improvements was made only by the defendants Leman Sheffield, Foster Sheffield, and George Wilson. The defendant Foster Sheffield does not sign the appeal bond, and is not therefore an appellant. The defendant George Wilson conveyed his interest in the land, it appears, on September 25, 1916, which was before suit was filed, and the grantee in that conveyance does not make the claim for any improvements. The only defendant making the claim properly assigning error on this appeal is Leman Sheffield. But if all three of the defendants had on appeal properly asked for review of the ruling of the court, the result would have been the same in view of the evidence. The evidence in the record is that these defendants constructed a house on the land "in the fall of 1916," through their own labor, and using the money or "cash" obtained from a policy of insurance to the amount of $300.00" in buying the lumber and material necessary. There is no proof of the value of the land with and its value without the improvements. Evidence merely of the cost of improvements, irrespective of the effect upon the value of the land, is not enough to warrant sending the case to the jury. The measure of compensation to the claimant is not the original cost of the building, but the enhancement in value of the land by reason of the improvements. There must be a benefit to the owner of the land in enhanced value of the land to estop him from denying the right to compensation for the improvement. It is essential, then, to the claimant's remedy, in order to measure the compensation, that there be evidence of the value of the land with and its value without the Improvements. Crump v. Sanders,173 S.W. 559; North Texas Lumber Co. v. Bank, 186 S.W. 259. The trial court therefore did not err in giving the charge.

It is concluded that there is no evidence to warrant an issue on wrongful or negligent execution of the sequestration writ.

The judgment is affirmed.