
    PARLIN & ORENDORFF IMPLEMENT CO. v. CLEMENTS.
    (Court of Civil Appeals of Texas. Austin.
    April 16, 1913.)
    1. Appeal and Error (§ 1068) — Harmless ERROR — ERRONEOUS INSTRUCTIONS.
    Where the judgment rendered in an action for damages is fully sustained by evidence, the error in submitting an improper element of damages is not prejudicial.
    [Ed. Note. — F'or other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.]
    2. Execution (§ 472) — Wrongful Execution— Liability.
    An owner of property wrongfully levied on under execution, who refrains from using the property under the instructions of the officer making the levy, and who is thereby for a time deprived of its earning capacity, may recover the reasonable value of its use during and up to the time he was informed of the release of the levy.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 1403, 1404; Dec. Dig. § 4(72.]
    3. Execution (§ 472) — Wrongful Execution— Liability.
    Where an officer wrongfully levied on two horses of defendant, and for five "Or six days defendant was not permitted to use the horses, and the reasonable value of their use was about $3 per day apiece,'a judgment for $8 damages was authorized.
    [Ed. Note. — For other cases, see Execution, Cent. Dig. §§ 1403, 1404; Dee. Dig. § 472.]
    Error to District Court, McLennan County; Marshall Surratt, Judge.
    Action by T. E. Clements against the Par-lin & Orendorff Implement Company. There was a judgment for plaintiff, and defendant brings error.
    Affirmed.
    See, also, 54 Tex. Civ. App. 356, 117 S. W. 495.
    J. B. McNamara, of Waco, and Short & B’eild, of Dallas, for plaintiff in error. W. L. Eason, of Waco, for defendant in error.
    
      
      For otter cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   Findings of Fact.

JENKINS, J.

On May 2, 1900, in a suit of plaintiff in error against Wiley Jones and defendant in error, plaintiff in error obtained judgment in the justice’s court of precinct No. 1, Dallas county, against said Jones; but no recovery was had against defendant in error. This judgment has been kept alive by the issuance of executions. About July 1, 1907, plaintiff in error obtained an execution on said judgment, which recited that the same was rendered against both Jones and defendant in error, and placed said execution in the hands of a constable at Waco, Tex., who levied upon two head of horses belonging to defendant in error and his partner in the livery business, one Webb. Webb afterwards sold said livery business and all accounts due said business to defendant in error. Defendant in error informed the constable and plaintiff in error’s local attorney at Waco before said levy was made that there was a mistake in issuing said execution, and that said judgment in fact was not against him. The constable left said horses in possession of Webb, partner of defendant in error, taking his receipt for the same. Defendant in error went to Dallas, examined the judgment, and found that it in fact was not rendered against him, and so informed plaintiff in error, who, after having said judgment examined by their attorney, instructed the constable to release said levy. The horses were held under this levy five or six days, and the value of their use during such time was $3 per day each. Defendant in error recovered judgment for $100 damages, but remitted $92 of the same.

Opinion.

Defendant in error objects to the consideration of plaintiff in error’s assignments of error, for the reason that they do not comply with the rules for the government of this court. These objections might well have been sustained, but we have concluded to decide this case upon its merits.

The court submitted to the jury two elements of damage; one the value of the use of the horses whilst they were held under said levy, and the other expenses incurred by defendant in error in going to Dallas and getting said levy released. Plaintiff in error conténds that such expenses were not proximately caused by said levy, and are too remote to be the basis of recovery. If this be conceded, the judgment as it now stands, to wit, for $8, is fully sustained by the evidence as to the value of the use of the horses during the time they were held under said levy. “If [appellee] refrained from the use of the property under the instructions of the officer who made the levy, and thereby for a time was deprived of its earning capacity, he could, if there was evidence to justify the submission of that issue, recover the reasonable value of its use during and up to -the time that he was informed that the levy was released.” Low v. Ne Smith, 77 S. W. 32.

Appellee testified as follows: “I do not know just exactly how long those horses were from under my control and possession after the levy. It was several days; my best judgment of the number of days would be five or six. They left the horses there in Mr. Webb’s possession during that time, and Webb gave him a receipt for them. During that time I was not permitted to use them. The reasonable value of the use of the horses was about $3 per day apiece.” Finding no error of record, the judgment of the trial court is affirmed.

Affirmed.  