Appellants' brief presents together plaintiffs' eighth assignment of error and the *Page 579 surety company's sixth and seventh assignments.
Under this head appellants present these propositions:
"First Proposition. "If the measure of damages in this case is defendant's portion of the market value of the crop he would be reasonably expected to have raised on the premises during his supposed term, less `all expenses reasonably necessary in planting, cultivating, harvesting and marketing the crop,' then it was necessary for defendant to prove what those expenses were, and on failure to make such proof the value of the crop is not shown, and the `means of ascertaining the measure of damages is not afforded,' and defendant's cross-action fails.
"Second Proposition. "The real measure of damages in this case considering the plaintiffs' liability if there has been a tenancy is the rental value of that part of the farm that was uncultivated at the time of eviction, plus the loss of defendant's portion of any crop actually planted and growing, and plus the value of the preparation of land for cultivation in the matter of the broken and unplanted land."
The measure of damages in a case of renting land for a share of the crop to be produced upon it where the tenant is wrongfully dispossessed during his term is clearly laid down by the Supreme Court of this state in Rogers v. McGuffey, 96 Tex. 565, 74 S.W. 753, in accord with the charge given by the trial court in this case. The trouble, however, is with the testimony, which, in this case, fails to afford the jury the means of arriving at what expense the defendant would have been in producing the crops, had he been allowed to continue the possession. The jury, therefore, did not have what was necessary to guide them in applying the rule. It is not possible to say that the verdict would not have been less had the testimony shown what the expenses would have amounted to. The first of said propositions is sustained. Railway v. Pape, 73 Tex. 501, 11 S.W. 526.
We overrule the second proposition. Defendant's damages from being dispossessed were the same, according to said rule, whether he had or had not actually planted all of the ground. If appellants' view were sustained, all that the wrongdoer would have to do to safeguard himself against the tenant's damages would be to see to it that he was evicted early in the term.
The third proposition under said assignment is that the burden of proof of damages was on the defendant. This is indisputable, but there is nothing in the charge to the contrary.
The fourth proposition is that: "Prospective profits, when allowable, must be proved with certainty, `and the instances in which it would be possible to make such proof must necessarily be exceptional.'" Reasonable certainty is all that is necessary. The testimony introduced for the purpose of showing what crops would have been produced by defendant on this land was by comparison with what other like land in the neighborhood produced that season. The testimony is probably sufficient, but in view of another trial any doubt as to the question may be removed.
Another proposition under certain assignments is that the verdict "is not sufficient to justify a judgment because it is vague and uncertain, in that it finds for the defendant in the sum of $350, and does not state against whom it is found and besides there is a judgment in the surety company's favor and no verdict in its favor at all." The general verdict for defendant meant against both parties against whom judgment was asked. The court properly entered judgment in favor of the surety company over against plaintiffs, such judgment being asked in the surety company's pleading, and its right thereto being clear.
Another proposition is found which contends that a joint judgment against principal and surety is void, when exemplary damages are involved, because exemplary damages are not allowed against a surety. Exemplary damages was not submitted to the jury; hence the verdict had reference to actual damages.
Another proposition is that: "A surety in sequestration is not liable for anything but the wrongful eviction or trespass, and is not liable on any contract existing between the parties and connected with the eviction or trespass." Also this: "Loss of profits, resulting from wrongfully attaching property, is not an element of actual damages, but can be recovered only when exemplary damages are proper. Hence this case is either one on contract not ex delicto for trespass in seizing the property under sequestration, or no damages have been properly proven unless they are exemplary. Hence the judgment is against the facts and the evidence." Also: "A surety on a sequestration bond is liable only as a trespasser, ex delicto, as for a tort, and not for obligations or contracts between the parties, except so far as such contracts may make the sequestration void."
Our view varies from these assertions. The damages measured by the aforesaid rule are actual damages. The obligation of the sequestration bond is that the person suing out the writ will pay to the defendant all such damages as may be awarded against him, and all costs, in case it shall be decided that such sequestration was wrongfully issued. It is well settled that the surety is not liable on the bond for exemplary damages, unless such damages are based upon some special conduct of the plaintiff in which the surety participates. For the actual damages done by reason of the wrongful issuance of the writ the surety, in terms, binds *Page 580 himself. The rule of law relating to the ascertainment of the actual damages in the particular case cannot be given the effect of relieving the surety.
What has been said in this opinion sufficiently disposes of propositions we have not specially mentioned. We may add, though it is hardly necessary, that mere matters of omission in the charge of the court cannot be complained of, unless proper requests are made and refused.
Reversed and remanded.
On Motion for Rehearing. This cause was remanded because of the failure to prove what the expense of making the crops would have been. This went to the sufficiency of the evidence to support the judgment, and was a matter necessary to be specified in the motion for new trial.
There was nothing in the motions for new trial assailing the verdict on this ground, unless it was comprehended in the following ground: "Because the verdict of the jury is contrary to the law and the evidence." That this did not present such question or any question for the action of the trial judge is made clear by rule 68 (67 S.W. xxv) prescribed for the government of district and county courts, which reads: "Grounds of objections couched in general terms as that * * * the verdict of the jury is contrary to the evidence, the verdict of the jury is contrary to the law and the like, shall not be considered by the court" This rule is in pursuance of article 1371, Rev.St., which requires all grounds to be specified, or not heard or considered.
There was nothing in the motion for new trial specifying and calling the trial court's attention to this ground of the insufficiency of the evidence. Consequently it was error for this court to sustain an assignment based on such ground.
There was a ground stated in the motions that the verdict was excessive for certain reasons as that the only damage shown, if any, was for five acres of corn that had been planted, and that no mathematician on earth could possibly figure $350 damages from the evidence. We find that there was testimony to support the amount of the verdict.
The case having been reversed and remanded on a question that appellant was not entitled to raise on this appeal, our former judgment is set aside, and the judgment of the district court affirmed.
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