Turner v. Strange
| Decision Date | 22 January 1882 |
| Docket Number | Case No. 1405. |
| Citation | 56 Tex. 141 |
| Parties | TURNER ET AL. v. A. B. STRANGE. |
| Court | Texas Supreme Court |
APPEAL from Houston. Tried below before the Hon. John R. Kennard.
Suit for damages for breach of contract. The plaintiff, A. B. Strange, contracted with W. P. Turner for a certain tract of land for one year, the terms being, one-third of the corn and one-fourth of the cotton to be paid to Turner as rent for the year. Turner agreed to build a cistern on the place, but there was a conflict of evidence as to whether this agreement was a part of the original contract; and whether or not it was absolute, or conditioned on his obtaining the guaranty of the builder who should be employed that the cistern would hold water. The cistern was not built, and Strange alleges failure on the part of Turner to build it or to supply him with a team until it should be built, and that he was compelled to haul water, and sued for damages in the sum of $500.
The evidence was that the water was hauled on an average of from two to three times a week; there was a difference of opinion between witnesses for plaintiff and those for defendant as to the cost per trip,--the former stating two dollars, the latter seventy-five cents as the cost in time, labor and team. Several of plaintiff's witnesses estimate the damage to him at $500, but they elsewhere state two dollars a trip to be the actual cost of hauling the water; and one of them testified that in stating $500 as his estimate of plaintiff's damage, he took into account inconvenience and loss to the crop. This testimony was admitted over the objection of the defendant that witnesses must give facts, not opinions, and exception was taken to the ruling of the court.
Substantially the following was asked by defendant as a part of the court's charge to the jury, and refused: That if the jury were satisfied that the contract as alleged was made, and that defendant agreed absolutely to build the cistern and furnish a wagon and team to haul water, they should assess the damages actually sustained; that is, loss of time, value of team, and services. That loss to crop, sickness in the family and inconvenience to them were not proper items to enter into the calculation of damages.
H. W. Moore, for appellee.
Burnett & Wicks, for appellant.
I. The testimony of the witnesses Brazile and White, as shown by bill of exceptions, not only included the question of their opinion as to the amount of damages resulting directly from the alleged failure of appellant Turner to furnish the cistern, but also indirect damages to the crop of appellee Strange. We are of opinion that the testimony did not come within the exceptions to the general rule that witnesses must state facts, not draw conclusions or give opinions. Clardy v. Callicoate, 24 Tex., 170.
Such exceptions ought not to be extended or enlarged so as to include new cases, except as a necessity to prevent a failure of justice, and when better evidence cannot be had. Note 12 to 1 Whart. Ev., §...
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...foreseen or anticipated as the natural and probable consequence of the act of repossessing the property. 17 C. J. 741, § 75; Turner v. Strange, 56 Tex. 141; Railway Co. v. Bigham, 90 Tex. 223, 38 S. W. 162; Spaeth v. Bevering (Tex. Civ. App.) 290 S. W. 803. Moreover, the record does not sus......
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...themselves be so presented or communicated to the mind of the jury as to impart the knowledge actually possessed by the witness. Turner v. Strange, 56 Tex. 141; Railway Co. v. John, 9 Tex. Civ. App. 342, 29 S. W. 558. But it is immaterial whether or not the testimony falls within the except......
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...(Tex. Civ. App.) 180 S. W. 1142; McCabe v. S. A. Traction Co., 39 Tex. Civ. App. 614, 88 S. W. 387, affirmed in 101 Tex. 647; Turner v. Strange, 56 Tex. 141. We are of the opinion that these two assignments do not present material error, and they are hereby In the third assignment complaint......
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