Lecht v. Gibson , 45 S.W.2d 1118 ( 1932 )

FLY, C. J.

Appellee sued appellants to recover for the conversion of certain furniture and .for damage to other furniture. It seems that the furniture was removed from a certain apartment house by appellants and placed in a back yard, and before it could be protected a rainstorm came up and the furniture was soaked by the water. It was alleged that the furniture was so badly damaged as to be unfit for use, and appellee presents testimony to that effect, and that the furniture was damaged in the sum of $650, the amount paid for it. The jury found that the damage to the furniture was $450.

Appellants sought a new trial on the ground of newly discovered testimony to the effect that the furniture was stored in San Antonio by appellee a short while after the rain had fallen on it, and that none of it was injured in- any way except a mattress and dresser, which could be repaired for not more than $15. The motion was supported by the affidavit of an expert on furniture, in whose care the furniture had been placed. The motion showed diligence in the discovery of the new testimony, and it was undoubtedly very material.

In view of inconsistent and improbable testimony given by appellee as to the value of the furniture and the size of the verdict, we are of opinion that the motion for new trial should have been granted.

In view of another trial, it is unnecessary to consider the other propositions on other matters which probably will not arise on another trial.

The judgment is reversed, and the cause remanded.