On Motion for Rehearing.
The original opinion affirming this case was filed on February 1, 1926. On March 2, 1926, appellant, through written motion, supported by affidavit, asked permission to file this motion for rehearing. The excuse offered for not filing the motion within the statutory 15 days after the filing of the opinion in this case is that the attorneys who represented appellant, both in the trial court and on this appeal, advised him that they had concluded from the opinion in this case that there was no reversible error and that it would be useless for him to apply to this court for a rehearing, but advised him to consult Messrs. Clark & Clark, the attorneys who have presented for him this motion for a rehearing; that he immediately consulted said attorneys, and that the motion for a rehearing was presented as soon as they could familiarize themselves with the record and the opinion rendered; that, although his former attorneys were diligent in securing a copy of the opinion and investigating same, that appellant was diligent in consulting said last-named attorneys, and they were diligent in making the necessary investigation, they were unable to make the necessary investigation and reach the conclusion that good grounds existed for presenting a. motion for rehearing within the said 15 days. These facts are supported by the affidavit of appellant and' by the affidavit of one of his former attorneys.
This court has permitted the motion to be filed and same has been considered by this court, with the result that we are of the opinion that said motion should be overruled.
The ground for reversal of the case suggested by 'the motion is that in appellee’s petition the meásure of damages for the destruction by fire of the household and kitchen furniture and other items mentioned in said petition is alleged to be their reasonable market value, whereas the true measure of damages is the actual worth or value of said secondhand articles to their owner at the time they were destroyed by fire. This contention is not supported by any assignment of error, nor was any special exception urged in the trial court against appellee’s petition because same did not state a correct’ measure of damages, nor was any objection offered to the evidence giving the reasonable value of said articles of furniture instead of their market value at the time said evidence was offered and received. It would be of no avail to appellant, however, if error thereon had been duly assigned. The petition describes the household and kitchen furniture and alleges that same was destroyed by fire. These allegations of fact fixed the legal measure of damages and appellee was not required to allege any measure of' damages. When appel-lee alleged that he was the owner and possessor of the described articles of household and kitchen furniture, and that same was destroyed by fire through the wrongful and unlawful act of appellant, this laid the basis for the recovery of the damages that resulted to appellee by reason of appellant’s said wrongful act, and the fact that he alleged the value of said articles to be their “market value” did not affect appellee’s right to have the court apply the correct measure of damages. I. & G. N. R. Co. v. Gordon, 11 S. W. 1033, 72 Tex. 44; Harmon v. Callahan (Tex. Civ. App.) 35 S. W. 705; Ara v. Rutland (Tex. Civ. App.) 172 S. W. 993; St. Louis S. W. Ry. Co. of Tex. v. Jenkins (Tex. Civ. App.) 89 S. W. 1106.
The words “value” and “market value” are often used interchangeably, and both as being the equivalent of “actual value” and “salable value.” Hetland v. Bilstad, 118 N. W. 422, 140 Iowa, 411. That appellee used the term “market value” in the sense of actual value is shown from the fact that in his petition, in alleging the amount of damages for destruction of the household goods that had belonged to Juan Gusman, and those that had belonged to Ganzales, he used the term “market value” in reference to each, but, in describing the items that had belonged to himself, he used only the term “value.”
Appellant seeks to apply the doctrine to this case that is applied to cases in which a plaintiff sues on an express contract and is not permitted either to offer proof of,- or recover on, an -implied contract, but is held to his allegation of an express contract. The distinction between cases of that class and the one at bar is very apparent. The petitions in such cases place plaintiff’s rights on the existence of an express contract, and place no right on the existence of an implied contract. In the ease at bar, appellee’s right of recovery is placed on the destruction of secondhand household and kitchen furniture. For the determination of the amount of damages suffered by reason of such loss, the law applies the legal measure.
Appellant’s motion for rehearing is overruled.