The record shows that Holmes, appellee, shipped certain cattle from the republic of Mexico through the custom house at El Paso, and that; thereafter in some way he lost his possession of them. Through a claim of ownership of a part thereof for himself and as administrator of an estate for others, appellant obtained possession (in some way not revealed). Appel-lee, by writ of sequestration, levied upon them, and defendant (appellant here) filed re-plevy bond. This suit is for the cattle, or, in the alternative, for their value. The cause was submitted upon special issues to a jury, and upon the verdict judgment was rendered for appellee, Holmes, for $2,590, from which this appeal is prosecuted.
[,1] The first assignment is that the trial court should have instructed a verdict for appellant, because the evidence is conclusive that the cattle are claimed by appellee by purchase upon the range, and his title is not evidenced by bill of sale; therefore the possession of the cattle is prima facie illegal. The cattle were upon the range in the republic of Mexico, and from there shipped to the United States through the custom house. Under the holding in Bank v. Daugherty, 81 Tex. 301, 16 S. W. 1028, the provisions of articles 7170 and 7171, Vernon’s Sayles’ Statutes of Texas, to the effect above claimed, will not be given an extraterritorial effect, where the sale was accompanied by actual delivery and afterwards brought into the state, because the statute has reference to cattle found within this state.
[2] The second assignment charges error in admitting over objection the following testimony:
Witness Payan: “I went tó Parral at that time for my family, and Don Ygnacio and I went to the attorney’s house, Mr. Gomez y Salas. Mr. Loya told me to act as companion, so he could deliver some money, so I would be present when he would deliver the money, and that is where I knew those people he introduced as his relations. I did not see the defendant, Pedro R. Jurado, present at the time; he was not there. Mr. Loya stated to me he was delivering that money for interests he was buying from the inheritance left by Pedro Maria Jura-do; that is all, and I left them. I saw the money delivered to this man Rodriguez. They were referring to some interests, cattle and other things. They did not tell me what ranch or cattle, or anything; just told me it was property left by the will of Pedro Maria Jurado; during that time that man was very well known in that district. I have been informed that the people I was talking to were the father and mother of the defendant here.”
To which testimony; the defendant objected for the following reasons, to wit: That the same was immaterial and irrelevant, and in no way binding upon the defendant, and further that said testimony was not admissible as rebuttal testimony, and that it was hearsay, and that it was secondary; that, if there was any sale of these cattle then, a bill of sale would be the best evidence as to the transfer and sale, and that said testimony was merely hearsay, and was incompetent; and, further, that the witness does not know whether the parties referred to are the same parties at interest in this case. The testimony, if of any probative effect, tends only to establish that Loya, appellee’s vendor, had purchased the cattle from the same parties for whom the appellant claims the cattle as administrator under the will of their grandfather. It seems clear that the testimony should not have been admitted, for the reason that it was hearsay testimony. The appellee urges that it was res gestae of the transaction. It is clear that the witness did not know what the money was paid for, and there is no other testimony in the record to identify the object of the payment.
[3] Appellee further urges that, since appellant brought out the same testimony upon cross-examination, he waived the error. The rule is settled to the contrary in Cathey v. Railway Co., 104 Tex. 39, 133 S. W. 417, 33 L. R. A. (N. S.) 103. The test question in this case is: Did appellee get title by his purchase from Ygnacio Loya? And the record discloses that, if the latter had title, it was from the heirs of Pedro Maria Jurado, and there is no other evidence, .than that above complained of, to show that he acquired such title, and this is not admissible, *861unless it be clearly shown that the money paid was the purchase price of the cattle in controversy. We note also, in view of another trial, that defendant testified that certain of the cattle were his by inheritance as one of the heirs, and that this is in no wise contradicted. For this reason appellant in any event should have had judgment for such cattle.
The third is that it was error to refuse special charge requested by appellant. Was there a market value in El Paso for the class and kind of cattle of those in controversy? And the fourth is based upon an objection to the main charge, upon the ground that it assumed that there was a market value for the cattle in El Paso. Under the evidence, the question is so doubtful as to require the court to submit it affirmatively to the jury, and it was erroi to submit the question, “What is the market value * * *?” without first submitting the question of whether in fact there was a market value.
The fifth complains of the misconduct of the jury in arriving at the market value of the cattle. If error, not likely to occur upon another trial.
For the reasons noted above, the cause is reversed and remanded for a new trial.
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