This was a suit by the appellee against J. M. Tucker, sheriff of Williamson county, and his co-defendants to recover damages for the alleged unlawful seizure and conversion of a stock of liquors and other articles claimed by the appellee to be his property. One of the issues for the jury to determine was the amount of damages the plaintiff below was entitled to recover in case he succeeded in the action. The measure of such damages has been well settled by the decisions of this court to be the value of the goods seized at the place of seizure on the day of conversion, and interest on that value. Blum v. Merchant, 58 Tex., 400; Wallace v. Finberg, 46 Tex., 35.
This of course means their value in the exact condition they were at the time of seizure, and does not refer to what might be obtained for them if retailed in small quantities at different times, and in a different shape from that in which they were found by the party converting them. To allow the retail value of the goods to be recovered would be not only to include as damages the profits which the party might have made over and above the ivholesale price of the goods, but also pay for the expense to be incurred and the time and labor to be employed in disposing of them. Hence the value of the liquors when sold by the drink at a saloon was not a legitimate subject of inquiry in the case; and evidence upon the subject tended only to confuse the jury, and cause them to incline towards the highest amount of damages proved in making up their verdict. Such evidence was admitted by the court over the objec*175tions of appellants, and to this ruling exception was properly taken below, and the second assignment of error brings it up for revision of this court.
It is attempted to justify the admission of this evidence for the reason that it ivas brought out on cross-examination to test the accuracy and extent of the witness’ knowledge as to market value by inquiring as to particular sales and retail prices.
Inquiries as to particular sales are' sometimes admitted for such purposes, but the sales must be of the article in like quantities and condition as that involved in the case on trial. If the witness had testified as to sales of liquors by the barrel, case or dozen, it would perhaps have been allowable; for the liquors in question were put up in one or the other of those shapes at the time they were levied upon. But their price by the drink threw no light upon their Avholesale value, but, on the contrary, tended rather to fix a false standard by which to estimate it.
Hor did the fact that the judge laid doAvn the true measure of damages in his charge cure the error committed in allowing this illegal testimony to go to the jury. The practice of admitting improper evidence over the objections of a party, and afterwards attempting to counteract its influence by telling the jury to disregard it, has been unfavorably commented upon by this court in the case of Gulf, Col. & S. F. R’y Co. v. Levy, 59 Tex., 543 (1 Law Rev., 344).
That cause was reversed upon no other ground except for the course thus pursued by the court below, and it was said that the court Avould not encourage the practice of admitting improper evidence Avith the expectation of controlling it by the charge. There the jury Avere expressly directed not to consider the evidence in making up their Aerdict. Here the court, in effect, did the same thing, and laid doAvn a rule of damages which, if correct, as it undoubtedly Avas, clearly showed that there was error in admitting proof as to the retail price of the goods seized under attachment. In such state of case the jury must' have been somewhat in doubt as to the standard by which they should measure the damages. They must have supposed that, in arriving at their .value at the time and place of the seizure, they were to take into consideration the retail price, or at least let it in some degree control the smaller value placed upon them by the witnesses Avho testified as to their worth at Avholesale. If not, why did the court allow such evidence to come before us? they might reasonably inquire. Ho Avitness placed this Avholesale value at more than §600, and some much below that; and yet the jury found the actual damages to be $750, besides interest.. *176The plaintiff, it is true, said the liquors, etc., were worth to him, as a saloon-keeper, $1,000, but from this statement itself and his whole evidence on this subject, taken together, it is clear that he meant that they would bring this amount when disposed of in his saloon by the retail.
We think the court erred in admitting this illegal testimony over the objection of appellants. As for this error the judgment must be reversed and the cause remanded, we will add that, in our opinion, there was error in admitting such of the evidence of Fisher as consisted of statements made by third parties not in presence of appellants, which tended to show an indebtedness of Scott to P. J. Willis & Bro., and to appellee, or good faith in the transfer from Scott to Hamlin. These statements were made subsequent to the accrual of the debt in favor of Bertram & Moeller, and at a time when steps were being taken by Willis and Hamlin to obtain a preference over them, either by attachments or purchase. Some of the same facts were proved by Hamlin, by whom a portion of the statements were made, and Scott, who made the others, could have been called to the stand to testify as to them. The court attempted to control the effect of this evidence by directing the jury to disregard a large portion of it, but, as we have shown, this did not cure the error of letting it go to the jury over the objections of appellant.
We think that the court did not err in giving the third paragraph of the charge complained of in the third assignment of error, for whilst that paragraph instructed the jury to find for defendants, if the sale to Hamlin was fraudulent and the latter knew that it was so, yet immediately afterwards, and in the same connection, he charged in effect that the defendants should have a verdict if Hamlin had good reason for believing that Scott’s transfer was for the purpose of defeating his creditors.
Nor did the court err in refusing the second special charge asked by appellant’s counsel, for substantially the same charge, though expressed in different language, had already been given by the court in its general instructions to the jury. Humphries v. Freeman, 22 Tex., 45, 50. The other errors assigned are not such as to require attention.
For the errors set forth in first and second assignments of error, the judgment is reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered October 16, 1883.]