Land Mortgage Co. v. Campbell , 98 Tex. 372 ( 1905 )

Campbell and wife brought this suit to recover of the mortgage company a sum paid as earnest money upon, and damages for breach of, a contract by which the company, acting through parties alleged to be its agents, agreed to sell and convey to Mrs. Campbell certain real property in the city of Dallas. The contract price to be paid by Mrs. Campbell was $1800, and she alleged the value of the property at the time when it should have been conveyed to her to have been $3000, and sought to recover as her damage the difference between the two amounts. She recovered judgment for $350 as damages besides $90 paid upon the price as earnest money. This was affirmed by the Court of Civil Appeals, all objections urged by the mortgage company to the judgment having been overruled by that court. We see no reason to differ with the Court of Civil Appeals further than is hereinafter stated.

One of the questions of fact contested in the trial court was as to the value of the property, the plaintiffs trying to prove that it was greater than the contract price, while defendant's evidence tended to show that $1800 was its full value. The plaintiff, Mrs. Campbell, testified in her own behalf, and the following questions addressed to her and answers made by her were admitted over defendant's objection that the witness was not shown to be qualified to give an opinion on the subject: "Did you make any inquiry in the neighborhood as to the value of the properties, and the value of that property?" The answer was: "I did." Question: "From the investigation you made, and the location of the property, what was the value of that property?" The answer was: "I liked it, and if it had not been worth more than $1800 I would not have bought it. I thought I was getting a bargain. From my investigations and inquiries, I thought the property was worth $2700 or $2800." There was no evidence that the witness knew the value of this or other property in Dallas, nor that she had had opportunities to enable her to form an intelligent opinion on the subject, beyond the investigation which she says she had made. The sources of her information or the facts upon which she based her conclusion are not stated by her, or otherwise made to appear, so as to enable the court to see that they were such as to qualify her. The rule on the subject which has been laid down by this court is that, before a witness should be allowed to state an opinion as to the value of property, his qualification to do so should be shown. It is very clear that this was not done in the present instance, and we must sustain the assignment of error upon this ruling. Southern P. Ry. Co. v. Maddox, 75 Tex. 305 [75 Tex. 305]; East T. Ry. Co. v. Scurlock, 97 Tex. 305.

It is urged that the admission of the evidence did not injure the defendant, since the jury found for plaintiff a sum authorized by other competent evidence and less than that deducible from her testimony. But the evidence does not make it clear that the property was worth more than the contract price, and the finding of the jury in favor of the plaintiff on this point was very probably influenced, to some extent, by her testimony; at least it can not be known that such was not the case. There is no evidence fixing the exact amount found by the jury as the difference between the contract price and the value of the property, nor any which we can say the jury adopted in preference to hers.

Objection is urged to parts of the testimony of the witnesses L.A. Wilson and A.T. Lightfoot. These witnesses were qualified, as real estate agents knowing values of such property in Dallas, to express opinions, and in doing so they could properly state all circumstances affecting the value of that in question, such as its rental value, its location, character of improvements, and the extent of improvement going on around it at the time of the contract and its breach, so far as these affected its value. As we understand their testimony, this is what they did, adding their opinion as to the market value resulting from these things. One of them admitted that the property would not probably have brought more than $1800. This did not render inadmissible what he had previously stated, but only affected his credit and the weight of his testimony with the jury. Another feature of the testimony of the witnesses raised by the objection deserves notice. They both showed, on cross-examination, that in their estimates of the value of the property, they took into consideration the fact that plaintiffs intended to make some improvement in the houses, and their evidence seems to include, in their valuation, the effect of this improvement and the addition thereby to be made to the value of the property. This, of course, is not proper. The question is as to the value of the property in the condition in which it was to be conveyed. Every quality and condition which gave it value can be considered, and this would include its capacity for further improvements and use, but not a value to be added by improvements to be subsequently made. We deem it proper to add that plaintiffs are not necessarily to be defeated by failure to prove market value if none can be established. If the property had a fixed market value or salable value that would be the criterion; but, as this property may so differ from other pieces of realty that its market value may not be ascertainable from the course of dealing in other like transactions, it may be necessary to resort to other means of showing its true value. For this reason we think that evidence of the character of that introduced is admissible, under the restrictions indicated. Sedgwick on Damages, secs. 243, 250.

For the error in admitting the testimony of Mrs. Campbell, the judgment is reversed and the cause remanded.

Reversed and remanded.