McGaff v. Scrimshire , 155 S.W. 976 ( 1913 )

We hardly think it necesary to discuss appellant's assignments specifically, believing as we do that a general disposition will be sufficient.

There is no statement of facts, and it is therefore clear that all assignments urging the insufficiency of the evidence to support the judgment must be overruled, for the reason that we have no means of determining, other than from the court's findings, what the evidence was.

There is no basis in the court's findings of fact for the contention that, inasmuch as appellant had leased the premises in controversy to Pittinger, the former must be released; for nowhere in the findings does it affirmatively appear that appellee consented to such sublease of the premises, nor does it appear in such findings that the sublease was made with any understanding or agreement on appellee Scrimshire's part that appellant was to be released from the original obligation alleged and shown to return the property upon the expiration of the lease in as good condition as he received it, ordinary wear and tear alone excepted.

Nor can it be said from the court's findings that it does not sufficiently appear that appellee was damaged, or that the amount of the damages is not sufficiently specific. The court finds that at the time of the delivery to appellant of the engine in controversy it was of the reasonable market value of $400, but that at the date of its return it was of a reasonable market value of $300 less. It necessarily follows as a legal consequence that appellee was damaged, and damaged in the amount of the depreciated value as found by the court; it being a well-recognized principle that "Id certum est quod certum reddi potest." This certain damage so found by the court was within the appellant's contract, and for which he was therefore liable.

No other suggestion requiring discussion occurs to us, and the court's conclusions of fact and law are therefore adopted, and the judgment is affirmed.