Hickman v. Aldridge

• Decision Date: 25 October 1929
• Docket Number: (No. 608.)
• Citation: 21 S.W.2d 341
• Parties: HICKMAN et ux. v. ALDRIDGE.
• Court: Texas Court of Appeals

Page 341

21 S.W.2d 341

HICKMAN et ux. v. ALDRIDGE.

(No. 608.)

Court of Civil Appeals of Texas. Eastland.

October 25, 1929.

Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.

Action by Jesse S. Aldridge against Roy Hickman and wife. From a judgment for plaintiff, defendants appeal, and plaintiff files cross-assignments of error. Judgment modified, and, as modified, affirmed.

Wilkinson & Wilkinson, of Brownwood, and J. L. Alford, of Rising Star, for appellants.

E. B. Hendricks, of Fort Worth, for appellee.

FUNDERBURK, J.

This is a suit by Jesse S. Aldridge against Roy Hickman and wife for damages for the conversion of a piano, with an alternative claim for the "title and possession of said piano, with damages for all injuries to said piano, and for the detention and withholding the same from the plaintiff, together with damages on account of the depreciation of the market value thereof by reason (of the) said withholding thereof from plaintiff." The pleading further alleged as a part of such alternative claim that the piano had been damaged in shipment from Fort Worth, Tex., to Rising Star, and in moving the same from the depot at Rising Star, at least $150, and that, by reason of defendants' removing said piano from the depot at Rising Star to their home and withholding same for a period of approximately six months, the piano was classed as secondhand, and the market value thereof depreciated at least $500. The prayer was for judgment for $1,150, the alleged market value of the piano at the time it was alleged to have been converted with 6 per cent. interest, and, on the alternative claim, judgment was prayed for the title and possession of the piano with recovery of damages for $650 and for general and special relief. Defendants' answers consisted only of a general demurrer and a general denial. The case was tried before the court without a jury. The court did not file conclusions of fact and law. By the judgment, plaintiff recovered nothing upon his cause of action for conversion. He was awarded judgment for the title and possession of the piano, with an award of recovery of the sum of $200 as damages for the detention of the piano. It was further decreed that, if the piano could not be had, plaintiff should recover of and from the defendant Mrs. Roy Hickman the sum of $1,100, same recited to be "the value of the piano as found above," and it was further adjudged that the recovery of the $1,100 should be "in addition to the damages and costs aforesaid." The judgment provided that execution should first issue against the separate property of Mrs. Hickman, and secondly, the community property, but provided that, in no event, should execution issue against the separate property of Roy Hickman. It was further adjudged that plaintiff take nothing against Roy Hickman, and it was also recited "that the defendants take nothing against the plaintiff by reason of their cross-action filed herein." According to the record, however, no cross-action was filed. The answer of the defendants, as said above, consisted of general demurrer and general denial. From the above-described judgment, defendants have appealed, and appellee has filed cross-assignments of error. For convenience, the parties will be referred to as plaintiff and defendants the same as in the court below.

Plaintiff's cross-assignments of error complaining that the trial court erred in not giving him judgment upon his cause of action for conversion will be noticed first. The judgment is not entirely clear on the point that it awarded no recovery for conversion. Appellee seems to construe that it did award such recovery, but in the alternative to the recovery of title and possession of the piano. We do not believe the judgment is properly to be so construed. The judgment having certainly awarded recovery of specific personal property, it was the duty of the court to also award judgment for its value. Lang v. Dougherty, 74 Tex. 226, 12 S. W. 29; Morris v. Coburn, 71 Tex. 406, 9 S. W. 345; Blakely's Adm'r v. Duncan, 4 Tex. 184; Cheatham v. Riddle, 8 Tex. 168; Hoeser v. Kraeka, 29 Tex. 450.

Such award of recovery for the value of the property in case the specific property could not be found is upon a different principle than that governing damages for conversion. This is pointed out in Morris v. Coburn, supra, wherein it is held that the value involved in a conversion is that of the property at the time it is converted, but the value awarded as an alternative to recovery of specific property is the value at the date of the judgment, or, as there said, if writ of restitution is issued when compliance with the writ is refused. We therefore construe the judgment in this case as having refused recovery to plaintiff upon his cause of action for conversion and having awarded recovery of specific personal property or its value.

As so construed, all controverted questions of fact going to show whether or not there was a conversion must be resolved in favor of the judgment as against the existence of conversion. Defendants, by their testimony, tendered an issue of fact as to whether Gray, in the transaction involving the sale of the piano, was the agent of the plaintiff. The testimony of defendants also shows that Mrs. Hickman turned over to Gray diamonds as part payment of the purchase price of the piano, the value of which was asserted to be $515.28. It was defendants' contention that upon their repudiation of the contract of sale they asserted no claim to the piano other than the right to hold same to enforce restitution of the diamonds. In support of the judgment denying plaintiff a recovery for conversion,...