Carter v. Roland , 53 Tex. 540 ( 1880 )

Bonner, Associate Justice.

The following alleged errors: First, the court erred in its charge to the jury; fourth, the court erred in refusing charges 1 to 7 inclusive, which were asked by defendant; tenth, the court erred in overruling defendant’s motion for new trial—are assigned in such general terms as under the rules of practice we are not required, over the objection of appellee, to pass upon them. Johnson v. Alexander, 14 Tex., 386; Earle v. Thomas, id., 593; Fisk v. Norvell, 15 Tex., 434; Elliott v. Mitchel, 28 Tex., 112; Dunson v. Payne, 44 Tex., 542; Pearson v. Flannagan, 40 Tex., 383; Byrne, Ex’r, v. Morris, supra.

The third alleged error is, that the court specially erred in charging with reference to the compromise of the judgment of Roland v. Downing et als., in not charging that the plaintiff was bound by the compromise if she had accepted the property secured by the compromise and taken possession of the same.

The attorney-at-law of Mrs. Roland did not have, by virtue of this relationship, authority to compromise the monied judgment against Downing; and the fact that she subsequently, under the circumstances of this case, received possession of the specific property recovered also by the judgment, would not of itself be such a ratification as would bind her.

The fifth alleged error is, that the court erred in admitting as .evidence the original judgment of R. J. Roland v. Andrew Downing et al., as shown by bill of exceptions No. 1, because said judgment shows on its face that the court fixed the damages on an unliquidated demand, without the intervention of a jury.

It does not affirmatively appear that a jury was not impaneled, but if it did, this was but an irregularity which would not render the judgment void in a collateral proceeding.

Although Downing, the defendant in that judgment, might by a direct proceeding for this purpose have set the same aside, if in fact no jury had been impaneled, yet as he could have waived a jury, his failure to take such proceeding would be considered as such waiver. As he himself did not complain, a stranger could not for him.

The sixth alleged error is, that the court erred in admitting as evidence the original execution in said cause, as shown by bill of exceptions No. 2.

We think that, by a fair construction of the terms of the levy, this objection is not sustained by the record.

If, however, it be admitted that Carter, a stranger to that proceeding, could call it collaterally in question, then the objection was obviated by the return upon the venditioni exponas, under which the property was sold.

The eighth alleged error is virtually disposed of f die consideration of the last two preceding.

The ninth alleged error is, that the court erred in rendering judgment for fifteen hundred dollars and costs of suit, because the jury find the net value of the use of the one-half interest of the property five hundred dollars, and the value of the whole property one thousand dollars, and not the value of the one-half interest at one thousand dollars.

Whatever may be the strict grammatical construction of that part of the verdict which estimates the value of the property, yet we are of opinion that when read in the light of the charge of the court, the jury intended to place the estimate of one thousand dollars upon the half interest found for Mrs. Roland.

In the last clause of the charge the jury are instructed that, should they find for the plaintiff, they will state in a special verdict the value of the interest of the plaintiff in the property sued for.

The verdict was as follows: “We, the jury, find for the plaintiff, that the plaintiff is entitled to one-half interest in the following described property, to wit: One two-flue boiler, one thirty-inch Coleman corn mill, one thirty-inch breast flouring mill, and one flouring belt, together with all the fixtures and appurtenances belonging to the same, in the town of Iredell, Bosque county, Texas, the same being valued at one thousand dollars. A. J. George, Foreman.

“We, the jury, find that the plaintiff is entitled to the sum of five hundred dollars for the years 1875 and 1876, as rents and profits for the use of the above named machinery.

“A. J. George, Foreman.”

Thus considered, we are of opinion that the part of the first special verdict between the words “ to wit ” and “ Texas,” inclusive, are but descriptive of the property, in which they find for Mrs. Roland a half interest, and that they intended to estimate her interest at one thousand dollars, and not to place this valuation on the whole of the property.

The second and seventh assigned errors present the most material question in the case, and will be considered together.

Second. The court erred specially in charging the jury, that you will also find for the plaintiff the net value (if anything)of the use of such interest from the date of the sale by the sheriff up to the present time (the court meaning by the term interest, interest in the property sued for), and that they, the jury, could find this net value of the use of the property, together with the value of plaintiff’s interest in the property.

Seventh. The court erred in permitting testimony of witness J. W. McCulloch to go before jury, as shown by bill of exceptions No. 3.

It is insisted on behalf of appellant, Carter, that the only measure of damages for which he could be responsible would be the value of Mrs. Roland’s interest in the property, and legal interest thereupon.

Mrs. Roland’s suit seems to have been instituted and prosecuted upon the supposition that, by virtue of being, a purchaser of Downing’s half interest in the partnership property of Carter & Downing, she became a partner with Carter, and was also entitled to half the profits.

The court charged the jury that her measure of damages was the value of the use of her interest in the property.

Mrs. Roland introduced the witness McCulloch, whose testimony was objected to, tending to prove the value of the profits made by Carter. And the jury, under the pleadings and evidence, returned a verdict for her for five hundred dollars, “ rents and profits.”

The purchase of Downing’s interest in the partnership property of Carter & Downing by Mrs. Roland, created a dissolution of that partnership and made her a tenant in common with Carter. She was not bound to become a partner, and Carter was not bound to admit her as such. Story on Part., §§ 311, 312; Collyer on Part., § 112.

If Carter subsequently refused to recognize her interest in the property, but held the same adversely, she had her right of action to recover possession jointly with him; in which event she would be entitled to partition in this or a subsequent proceeding; or she might simply sue for damages for conversion.

As Mrs. Roland’s time, skill and services were not employed in the business, she should not participate in the profits, if any; and it would not be contended, under the circumstances, had there been loss and not profit, that she would be liable for the same.

On the other hand, as under the terms of the judgment Carter had the election to return the specific property instead of paying its valuation, and as the machinery was of a character which had a peculiar value from ordinary property, because adapted to a particular kind of skilled labor, and if used its value might thereby be deteriorated, then Mrs. Roland, as against Carter, if a wrongdoer, could claim as damages reasonable compensation for the use of the property instead of legal interest on its valuation.

This in principle is the doctrine of Pridgin v. Strickland, 8 Tex., 427; also Ewing v. Blount, 20 Ala. (N. S.), 697.

The charge of the learned judge presiding was in accord with this view of the law.

The plaintiff in her pleadings, however, claimed rents and profits as damages, and the testimony of the witness McCulloch, which was objected to, and that of other witnesses, was to this point, and the verdict shows affirmatively that the jury found as damages rents and profits.”

As tending to support this verdict, which was contrary to the law and the charge of the court, there was error in permitting the testimony of the witness McCulloch to go to the jury.

It is proper to remark that the correct practice is to raise such questions by demurrer and not by objection to the testimony. In this way the point is sharply made for revision by the appellate court, the proper issues are defined, so that the testimony can be introduced accordingly; the delay and possible error of the court in passing upon the introduction of the evidence, and the probable error of the jury in basing their verdict upon an improper issue, are avoided. Powers v. Caldwell, 25 Tex., 352; Williams v. Bailes, 9 Tex., 62.

There are separate verdicts, showing the valuation of the property and the amount of damages as rents and profits. The plaintiff, in any event, under the verdict should be entitled to as much as legal interest upon the value of the property, but there is no date fixed by the record from which this interest can be calculated except the date of the institution of the suit.

Under the authority of Bracken v. Neill, 15 Tex., 115, and Hunt v. Reilley, 50 Tex., 105, if the appellee, Mrs. Boland, will remit as of the date of the judgment, from the $500 found by the verdict as damages for rents and profits, the difference between that amount and legal interest upon $1,000, the value of the property, to be calculated to the date of the judgment from the time of the institution of the suit, then the judgment will be reformed accordingly, she to be taxed with the costs in this behalf expended, otherwise the judgment will be reversed.

[Opinion delivered June 11, 1880.]

The remittitur having been filed in this case, the judgment below is reversed and reformed in accordance with the above opinion.

Reversed and reformed.