Gillies v. Wofford
| Decision Date | 01 January 1861 |
| Citation | 26 Tex. 76 |
| Parties | M. GILLIES v. R. B. WOFFORD. |
| Court | Texas Supreme Court |
Where the petition in a suit for the recovery of personal property contained no allegation of the value of such property, it was error to allow evidence of the value to go to the jury against the objection of the defendant.
Neither the averments of value in an affidavit in such suit, made for the purpose of obtaining a writ of sequestration, nor similar recitals in the replevin bond of the defendant, will supply the want of the allegation in the petition, so as to admit evidence of the value, against the objection of the defendant.
Such a defect in the petition is cured by verdict when the evidence was introduced without objection; but it is not cured by verdict if the objection is interposed at the time of the introduction of the evidence.
In a suit for the recovery of personal property, the measures of damages is the value of the property and interest thereon from the time of the conversion; and it is error to instruct the jury to allow as damages “the loss the plaintiff may have sustained by reason of the detention of the property by the defendant.”
APPEAL from Bexar. Tried below before the Hon. Thomas J. Devine.
This suit was brought by the appellee, Wofford, against the appelant, Gillies, for the recovery of a wagon and team belonging to the plaintiff, and purchased by the defendant from the teamster who had had the property in possession, but no authority to sell it. The petition contained no allegation of the value of the property, but an affidavit made in the suit by the plaintiff, for the purpose of obtaining a writ of sequestration, did contain an averment of the value of the property. The defendant replevied the property sequestrated, and in his bond therefor also stated its value. At the trial the plaintiff offered evidence of the value, to which the defendant objected, on the ground that there was no value averred in the plaintiff's petition. The court overruled the objection and admitted the evidence, and defendant excepted.
The charge of the court below with regard to the measure of damages, referred to in the opinion, is as follows: “You will, if you find for the plaintiff, also find and state in your verdict the loss the plaintiff may have sustained by reason of the detention of the property by the defendant, computing the damage from the date of the service on Gillies of the writ of sequestration in this case.”
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Ray v. Barrington
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