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Texas Courts have recognized two measures of damages for misrepresentation. The first measure is known as the "out of pocket" measure and allows an injured party to recover damages for the actual injury suffered, calculated by determining the difference between the value of that which he has parted with and the value of that which he has received, calculated as of the date of the sale or delivery. The second measure is the "benefit of the bargain" measure, which is the difference between the value as represented and the value actually received.
This appeal arose from a suit filed by appellant Magdalene Campbell against appellees C.D. Payne, Stephen Bryan Payne, and Geldermann Securities f/k/a Heinhold Securities. In her suit, Campbell sought recovery for various alleged negligent misrepresentations, violations of the Texas Securities Act, breach of the duty of good faith and fair dealing, breach of fiduciary duty, promissory estoppel, negligent entrustment, negligent retention and/or negligent supervision, fraud, agency, civil conspiracy and violations of the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA). The claims against Stephen, as well as a third party action C.D. brought against Fred Payne, were severed from this cause. From a judgment decreeing she took nothing against Geldermann but recover a total of $ 34,000 (including actual damages, mental anguish damages and punitive damages) from C.D., Campbell brought this appeal and raised 11 points of error. Campbell’s third and fourth points of error asserted that the jury's finding, that Campbell incurred out-of-pocket expenses, was against the weight of the evidence.
Was the jury's finding, that Campbell incurred out-of-pocket expenses, against the weight of the evidence?
The court reviewed the questions submitted to the jury. The court found the trial court instructed the jury to consider only the "out-of-pocket" expenses Campbell incurred. The court intended the jury to determine the difference between the value of that which was parted with and the value of that which was received. The court found that the jury selected a figure entirely outside the evidence in answering the question. Accordingly, the case was severed the issue, affirmed in part, and reversed and remanded in part.