Wilks v. Kreis

• Decision Date: 07 January 1911
• Citation: Wilks v. Kreis, 134 S.W. 838, 63 Tex. Civ. App. 527 (Tex. App. 1911)
• Parties: WILKS v. KREIS.
• Court: Texas Court of Appeals

Page 838

134 S.W. 838

WILKS v. KREIS.

Court of Civil Appeals of Texas.

January 7, 1911.

Rehearing Denied February 11, 1911.

Appeal from District Court, Childress County; S. P. Huff, Judge.

Action by D. F. Kreis against G. W. Wilks. From a judgment for plaintiff, defendant appeals. Affirmed.

J. H. Aynesworth, for appellant. Fires & Diggs, for appellee.

CONNER, C. J.

Appellee instituted this suit, alleging that he was the owner and possessed of 122 head of mules, of the value of $60 per head, and of the aggregate value of $7,320, which the defendant, G. W. Wilks, had converted to his own use. Defendant, in answer, claimed the mules under a contract of sale set up by him, to the effect that defendant was to pay for the mules at the price per head stated in the plaintiff's petition by conveying to the plaintiff certain land, of the value of $4,800, and by executing his promissory note in the further sum of $3,160, and tender of conveyance and note was made. To this answer the plaintiff replied that a tentative agreement such as pleaded by the defendant had been made, but that it was conditioned upon the land mentioned in the contract being good agricultural land, as it was represented by defendant; that the land was not as represented, and that he had never concluded the agreement; notwithstanding which defendant, without his consent, had taken possession of and converted the mules, as originally alleged. The several issues thus indicated were submitted in a trial before the jury, which resulted in a verdict and judgment in plaintiff's favor for the sum of $7,076, with interest, etc., and defendant appeals.

By assignments of error to the court's charge, to the judgment, and to the action of the court in overruling the motion for a new trial, appellant insists that reversible error was committed, on the ground that the verdict and judgment awards a total sum for damages, without giving the specific values of each of the mules for which the suit was brought. Numerous authorities are cited which support appellant's contention in cases where the suit is for the recovery of specific property; but we need not stop to consider them, nor the reasons upon which they are based, for in our judgment they have no application to the case before us. The appellee's petition in terms and in legal effect makes the case one of simple conversion. Excluding formal parts it is as follows: "That heretofore, to wit, about the 15th day of April, A. D. 1909, plaintiff...