Stone v. Payne, 4105.

• Decision Date: 28 October 1942
• Docket Number: No. 4105.,4105.
• Citation: 168 S.W.2d 503
• Parties: STONE et al. v. PAYNE et al.
• Court: Texas Court of Appeals

168 S.W.2d 503

STONE et al. v.PAYNE et al.

No. 4105.

Court of Civil Appeals of Texas. Beaumont.

October 28, 1942.

Appeal from District Court, Nacogdoches County; J. W. Chandler, Judge.

Suit by Eugene Payne and another against J. E. Stone and another doing business as J. E. Stone Lumber Company for timber sold and delivered.Judgment for plaintiffs, and defendants appeal.

Reversed and remanded for a new trial.

A. J. Thompson and R. A. McAlister, both of Nacogdoches, for appellants.

Collins, Williams & Garrison, of Lufkin, for appellees.

COMBS, Justice.

The appellees, Eugene Payne and Citizens State Bank of Woodville, brought this suit against appellants, J. E. and Clyde Stone, doing business as J. E. Stone Lumber Company, for the sum of $1,687.21, alleged to be due Payne for timber which he sold and delivered to J. E. Stone Lumber Company.There was no dispute as to the quantity of timber involved.The sole controversy was as to the value of the timber.Plaintiffs contended it was worth $12 per thousand feet, the defendants that it was worth considerably less.The case was submitted to the jury by the following issue:

"What do you find from a preponderance of the evidence to be the reasonable, fair cash market value per thousand feet of the timber in question at Dolan Switch?

"Answer the amount per thousand feet in dollars and cents."

In response to this issue, the jury answered $12 per thousand feet.

On the verdict, judgment was entered for the plaintiffs for $1,684.06.The defendants have appealed.

Opinion.

Appellants complain of the action of the trial court in permitting the plaintiff Payne to testify to an offer of purchase made by a third party.Payne, while testifying as a witness in his own behalf, was asked the following question by his counsel: "State whether or not you were offered $12 per thousand for the same timber that you delivered on the track that Mr. Stone bought from you?"

Counsel for the defendants objected on the ground, among others, "that it would be inadmissible to show the cash market value" and that it was "hearsay."The objection was overruled and the witness testified in substance that one F. P. Newman, a representative of Kurth of Lufkin, had offered him $12 per thousand feet for the timber.

The reception of this testimony was error.Evidence of an unaccepted offer to purchase, made by one not a party to the suit, was inadmissible.Stanley v. Sumerell, Tex.Civ.App., 163 S.W. 697, 700;Texas & P. Ry. Co. v. Randle, 18 Tex.Civ.App. 348, 44 S.W. 603;Sullivan v. Missouri, K. & T. Ry. Co., 29 Tex.Civ. App. 429, 68 S.W. 745, 748;McCormick & Ray, Evidence, Sec. 699.Such evidence is quite generally condemned by the courts.See 2nd and 3rd Decennial Digests, subject, Evidence.Evidence of mere offers to sell or purchase, made by third parties, stands upon an entirely different footing from evidence of actual sales.Helena Power...