Alexander v. Byrd

• Court: Texas Civil Court of Appeals
• Writing for the Court: WALTER
• Citation: Alexander v. Byrd, 309 S.W.2d 952 (Tex. Ct. App. 1958)
• Decision Date: 24 January 1958
• Docket Number: No. 3350,3350
• Parties: W. S. ALEXANDER, Appellant, v. Earl BYRD et al., Appellees.

Page 952

309 S.W.2d 952

W. S. ALEXANDER, Appellant, v. Earl BYRD et al., Appellees.

No. 3350.

Court of Civil Appeals of Texas, Eastland.

Jan. 24, 1958.

Rehearing Denied Feb. 14, 1958.

Callaway & Callaway, Brownwood for appellant.

Woodruff & Holloway, Bill Allcorn, Dist. Atty., Brownwood, Walter K. Boyd, Jr., County Judge, Coleman, for appellees.

WALTER, Justice.

Earl Byrd filed suit against W. S. Alexander and William S. Evans in the District Court of Brown County to recover damages sustained by him in connection with his purchase of 585 head of sheep from Alexander which were alleged to have been infested with the disease of scabies. Byrd contended that Alexander represented the sheep to be free of disease and that he relied on such representations in his purchase of the sheep. Byrd pleaded in the alternative that Alexander acted as agent for Evans and that Alexander and Evans were jointly and severally liable for such damages. Byrd alleged the diseased sheep were placed in his pastures with other sheep owned by him which were exposed to the disease and that all of his sheep were placed under a ninety day quarantine by the Texas Livestock Sanitary Commission. Byrd pleaded that the actual purchase price of the 585 head of sheep was $17 per head but that such diseased sheep had a market value of only $5 per head and, in the alternative, if they had no market value, then the actual or intrinsic value was $5 per head. Byrd further asserted that he owned 667 head of sheep in Brown and Coleman Counties and 449 in Crockett County that were exposed to the diseased sheep purchased from Alexander and that on account of such exposure their market value had been reduced $12 per head. Byrd further contended that the reasonable and necessary cost of dipping, doctoring and caring for the quarantinued sheep was $1,305.

Alexander sued Byrd for $9,945 and for foreclosure of his chattel mortgage on the sheep, and the First National Bank in Brownwood and John T. Yantis for conversion of the mortgage property or the proceeds from the sale thereof in the District Court of Comanche County, which case was transferred to Brown County and consolidated with the case filed by Byrd against Alexander and Evans.

Based on the verdict, the court rendered judgment for Alexander in the sum of $6,624.01 against Byrd, being for the purchase price of the 585 sheep less the damages awarded Byrd by the jury and that Byrd be denied any recovery against Evans, and Alexander be denied any recovery against the bank and Yantis.

Alexander has appealed. He predicates his appeal on nineteen points of error. Three are directed to the action of the court in overruling his exceptions to Byrd's pleadings and one in overruling his motion for an instructed verdict. Ten points are directed to the action of the court in submitting certain special issues. Four points are based on the alleged error of the court in rendering judgment on the verdict. The remaining point asserts that the court erred in forcing appellant to testify on cross-examination by counsel for Yantis and the bank to certain impeaching matters.

Appellant's point number one is directed to the alleged error of the court in overruling his special exception number two, which is as follows:

'If Defendant's above special exception should be overruled, then Defendant Alexander specially excepts to section VII, and all parts of said pleading wherein it is stated that by reason of the disease with which said 585 sheep were suffering their market actual or intrinsic value was reduced to the extent of $12 per head, for the reason that said fact would be immaterial, since it affirmatively appears, from all of said pleadings, that said infection was easily controlled and eradicated by the treatment, and said sheep entirely cured, and the only injury that was suffered by the Plaintiff was the cost of such treatment, which Plaintiff has alleged to be the sum of $450, and which Defendant alleges to be $58.50, and Defendant asks that all of such allegations be stricken, as being improper measure of damage, and an attempt to recover double damage.'

This exception was filed on January 30, 1957, and overruled on February 4, 1957, and on February 6, 1957, Byrd filed a trial amendment amending paragraph seven by adding additional allegations concerning the market value of his sheep. Appellant's point number one is overruled because the allegations in the pleadings excepted to are material and set forth the correct measure of damages. The applicable measure of damages in a case of this kind is discussed by our Supreme Court in Morriss-Buick Co. v. Pondrom, 131 Tex. 98, 113 S.W.2d 889, 890; 'The question has been the subject of much contrariety of opinion, both in and out of Texas. See 27 C.J. pp. 96, 97, 98, 99, and footnotes. The rule in Texas is stated in 27 C.J., p. 98 as follows: 'In Texas it has been held by the supreme court that, where one is induced by fraud to enter into a contract to his loss, the measure of his damages is the difference between the value of what he parted with and what he received under the contract, such difference being regarded as the only actual loss involved and the difference between the real and represented value being regarded as too speculative to furnish a correct measure of damages."

The Morriss-Buick Co. case was followed by this court in Stuart v. Birdwell, Tex.Civ.App., 264 S.W.2d 452.

In the appellant's next point he complains of the court's action in overruling another exception to the same paragraph of appellee's pleadings for the same reasons set forth under his first point and for the further reason that such damages would be in the nature of special damages and that the appellee's pleadings were insufficient. Appellant specially excepted to that portion of Byrd's pleadings that asserted a damage of $12 per head for reduced market value of the sheep already owned by him at the time of his purchase of the diseased sheep. We cannot agree with appellant's contention because Byrd set forth in his first amended petition and in his trial amendment adding to paragraph seven thereof in plain and concise language that he was not only claiming damages from the appellant for the 585 head of sheep purchased, but that he was also claiming damages on account of his other sheep being exposed and quarantined. De Kalb Hybrid Seed Co. v. Agee, Tex.Civ.App., 293 S.W.2d 64, 67 (RNRE), is authority for the proposition that Byrd is entitled to recover for such consequential damages to the sheep already owned by him at the time of such purchase.

'We believe that appellee is correct on the authority of Blythe v. Speake, 23 Tex. 429; Rumely Products Co. v. Moss, Tex.Civ.App., 175 S.W. 1084. The latter case is also authority for holding that the appellee's measure of damages is not limited to the purchase price of the chicks as was written in the contract of sale, but that he could recover his damages arising naturally from the act of the appellant in shipping him diseased chicks after representing that they would be healthy. In Trinity-Universal Ins. Co. v. Maxwell, Tex.Civ.App., 101 S.W.2d 606 and Andrews v. Powell, Tex.Civ.App., 242 S.W.2d 656 similar holdings are to be found.

'In the case of Wintz v. Morrison, 17 Tex. 372, is found a discussion of the question of consequential damages arising from sales where there is fraud in the sale on the part of the seller. In the course of the opinion the court quotes from an older case in New York, Jeffrey v. Bigelow, 13 Wend. 518, with approval, holding that when a seller sold the buyer diseased sheep and the disease was communicated to the buyer's other sheep, then his claim for damages was not limited to the loss of the sheep purchased but extended to the...