After a re-examination of the record we have reached the conclusion that we erred in our original opinion in holding that judgment should be rendered by this court in favor of the appellant for the sum of $10,650 as the value of the shares of stock belonging to appellant, which we held were converted by the appellee, and which the trial court found was worth only $1,000.
The evidence upon which this court in our original opinion fixed the value of these shares at the time of their conversion was found in the testimony of the witness Merrill. Upon further consideration of this testimony we have concluded that it is too uncertain and speculative to require or authorize the rendition of judgment by this court for appellant for the large amount stated in our original opinion.
This witness testified with perfect candor and his sincerity in so fixing the value of the stock is apparent from the record of his testimony appearing in the statement of facts, but his opinion as to this value was admitted by the witness to have been based largely on hearsay, and the statements of others as to the value of the properties owned by the Saxet Company that issued the shares. Attorneys for the appellee objected to this testimony on these grounds. The testimony was admitted by the court subject to these objections, which were not expressly passed upon. It is manifest, however, from the finding by the court of the value of the shares that the trial judge did not consider the testimony as sufficient to fix their value. The trial court, as set out in our original opinion, found:
"That Mrs. Brammer had no knowledge prior to the issuance of the stock of The Saxet Company to her, in exchange for her stock in the Gulf Gravel Company and the Saxet Sand Gravel Company, that the plaintiff, O. L. Neyland, claimed or had any interest whatever in the gravel properties, or in the stock of The Saxet Company issued to her in lieu thereof, and that plaintiff made no demands on her at any time prior to the institution of this suit for any interest in the properties or stock of any of said corporations."
This fact finding is supported by the record, and it seems to us acquits appellee of any willful conversion of appellant's stock. She has not disposed of the stock, and only refused to turn it over to him after being told by others of the agreement made by her deceased husband and his partner in acquiring the properties which formed the capital of the corporations thereafter organized, as set out in our original opinion.
In these circumstances, we think the motion for rehearing should be granted, and the cause remanded for a new trial only upon the issue of the value of the stock at the time of the conversion.
Granted.
On Second Motion for Rehearing. At a former day of this term we reversed the judgment of the trial court in this case and rendered a judgment in favor of appellant. Appellee in due time filed a motion for rehearing, which was granted by this court in part, and the judgment of rendition theretofore entered was set aside, and the judgment of the trial court reversed and remanded for a new trial on the issue of the amount of damages sustained by appellant.
In due time, appellant filed a motion for rehearing, which was refused by this court on July 12, 1934. In the answer filed by appellee to appellant's motion for a rehearing, she complains of that portion of the judgment granting her first motion for rehearing, restricting a new trial in the court below to the issue of the amount of damages sustained by the appellant, and asks that such portion of our judgment be set aside, and, if the cause reversed, it should be for a new trial on all *Page 890 of the issues raised by the pleadings and evidence.
There was no indorsement on this answer indicating that it contained any request for affirmative relief, which in effect was a motion for rehearing, and for this reason it was not docketed as a motion for rehearing. In considering appellant's motion for rehearing, we found no reason for changing our former holding that the case should be reversed on the issue of damages, and therefore did not read appellee's answer to that motion.
Shortly after we ordered appellant's motion for rehearing overruled, appellee's attorney called our attention to the fact that we had not disposed of appellee's motion for rehearing contained in her answer, and requesting us to pass upon that motion. While we have doubt as to whether we should, under the circumstances above stated, treat the allegations of the appellee's answer as in effect a motion for rehearing, we have decided to give her the benefit of the doubt, and consider her answer as a second motion for rehearing.
We adhere to our holding on appellee's original motion for rehearing that the judgment of the trial court should only be reversed on the issue of damages.
It follows that appellee's second motion for rehearing contained in her answer to appellant's motion for a rehearing, should be overruled, and it has been so ordered.