B. & H. Motor Co. v. Tucker

• Decision Date: 18 November 1927
• Docket Number: (No. 360.)
• Citation: 299 S.W. 949
• Parties: B. & H. MOTOR CO. v. TUCKER.
• Court: Texas Court of Appeals

299 S.W. 949

B. & H. MOTOR CO. v. TUCKER.

(No. 360.)

Court of Civil Appeals of Texas. Eastland.

November 18, 1927.

Appeal from Eastland County Court, at Law; Tom J. Cunningham, Judge.

Suit by J. F. Tucker against the B. & H. Motor Company. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

R. R. Holloway, of Brownwood, for appellant.

M. McCullough, of Eastland, for appellee.

HICKMAN, J.

The questions of law decided in the opinion can be understood from a short statement of the nature of the suit, without the necessity of a detailed statement of the pleadings and evidence. Appellee was the owner of a used Buick car, and appellant was the owner of a used Studebaker car. An exchange was effected between them, by the terms of which exchange the Buick car was valued at $125, and the Studebaker car at $500. The amount of the difference between the valuations placed by the parties on the two cars was reduced to an installment note, which was later paid by appellee. The suit was brought by appellee for damages against appellant for alleged fraudulent representations made at the time of the exchange; the principal statement relied upon being that the Studebaker car was a 1923 model, when in fact it was a 1922 model.

The measure of damages pleaded by appellee and adopted by the court was the difference between the value of a 1922 model Studebaker car and a 1923 model. This is not the correct measure of damages. It is well established by the authorities that, in suits of this character, based upon an exchange of property, the measure of damages is the difference between the value of the property received and that given in exchange, and not the difference between the value of the property received and its value if the representations had been true. Appellee should have proved the value of the Buick car parted with by him and the Studebaker car received by him, and his damages should have been measured by the difference, if any, between these values, taking into account the obligation for $375. George v. Hesse, 100 Tex. 44, 93 S. W. 107, 8 L. R. A. (N. S.) 804, 123 Am. St. Rep. 772, 15 Ann. Cas. 456; Montgomery v. McCaskill (Tex. Civ. App.) 189 S. W. 797; Linnartz v. Lawrie (Tex. Civ. App.) 192 S. W. 789; Texas Harvester Co. v. Wilson Whaley Co. (Tex. Civ. App.) 210 S. W. 574; Foster v. Atlir (Tex. Com. App.) 215 S. W. 955; Webb v. Emerson-Brantingham Implement Co. (Tex. Civ. App.) 227 S. W. 499; Medley v. Lamb (Tex. Civ....