Baker & Lockwood Mfg. Co. v. Clayton

• Decision Date: 18 November 1905
• Parties: BAKER & LOCKWOOD MFG. CO. v. CLAYTON et al.
• Court: Texas Court of Appeals

90 S.W. 519

BAKER & LOCKWOOD MFG. CO. v. CLAYTON et al.

Court of Civil Appeals of Texas.

November 18, 1905.

Appeal from Potter County Court; Sam R. Merrill, Judge.

Action by the Baker & Lockwood Manufacturing Company against J. M. Clayton and others. From a judgment in favor of defendants, plaintiff appeals. Reversed.

W. E. Gee, for appellant. Turner & Boyce, for appellees.

SPEER, J.

Appellant sued appellee to recover damages aggregating the sum of $732.80, growing out of a rental contract by which the former let to the latter two tents to be used on the occasion of a Fourth of July celebration in the city of Amarillo. The damages alleged consisted of injuries to the tents while in the appellees' possession, loss of the rental value by reason of their being unreasonably detained by him, and certain return freight charges which appellant paid, and which it alleged appellee had agreed to pay. Appellee Clayton interpleaded the other appellees, and a trial before a jury resulted in a verdict and judgment against appellant.

Upon the trial appellant offered to introduce in evidence the deposition of the witness Carnie as follows: "Was the Baker & Lockwood Manufacturing Company deprived of the use of these tents for any other purpose while they were in the possession of Mr. Clayton? If so, what use could they have been put to, and what would have been the income to the company as the result of such use?" The answer to which interrogatory was as follows: "We were deprived of the profit of two rentals for $75 each, as we had intended to ship one of these tents to Washington, Iowa, and the other to Sydney, Iowa, and were to receive $75 in each case. When the tents in question were returned to us and repaired, it was too late to fill these orders." This question and answer were objected to by the appellees for the reason that they sought to prove damages that were too remote, speculative, and in the nature of special damages not in contemplation of the parties at the time the contract for the tents was made; and the court, sustaining this objection, excluded the testimony. In this ruling there was no error. The pleadings do not make a case of special damages growing out of the loss of profits of a contract or contracts made known to the appellees at the time of the making of the rental contract in this case. It is clear, then, that the measure of appellant's recovery upon this item would be the reasonable rental value of the tents during the time they were unreasonably held by appellant. We do not think the evidence offered even tended to show the reasonable rental value of the tents for any given time. In Young v. Atwood, 5 Hun, 234, which was an action brought to recover possession of a piano wrongfully detained from the plaintiff, and for damages for its detention, the plaintiff's counsel insisted on showing, and was finally allowed to do so, that the plaintiff had been offered $10 a month for the use of the piano; and the trial court's ruling in permitting this evidence resulted in the reversal of the judgment. The case of Yoakum v. Dunn (Tex. Civ. App.) 21 S. W. 411, cited by appellant, is not in point for its contention because it plainly appears in that case that at the time of making the contract of shipment the carrier (the defendant in the action) was notified of the purpose for which it was being shipped, and had such notice as would render it liable for the special damages sought to be recovered in that case.

There is no merit in the assignments of error complaining of the court's definition of negligence. There is no substantial difference between the charge...