MERCHANTS' & PLANTERS' OIL CO. v. KENTUCKY REFINING CO., 81 F. 821

PER CURIAM. This was an action to recover the title and possession of certain cars, with actual and exemplary damages for their unlawful detention. The plaintiff, in the circuit court, claimed that the defendant had fraudulently obtained possession of tiie said cars and unlawfully detained the same. There was evidence tending to establish the plaintiff’s claim of ownership, and for actual damages. The trial judge charged the jury to find for the plaintiff as to the title and ownership, and for the defendant on the question of exemplary damages, to all of which there was no objection.

He submitted to the jury, on the evidence, the question as to ivhelher the plaintiff was entitled to recover the rental value of the cars during their detention, as actual damages; refusing the request of the defendant to instruct the jury that in no event was the plaintiff entitled to recover anything for, or as the value of, the use and hire of the cars in question, because the action was one for deceit, and that the allegata and probata did not correspond, and because there was no legally sufficient evidence upon ,which to base a verdict for the plaintiff.

The jury found for the plaintiff as to the title and possession, and further in the sum of $640, as the amount shown by-the evidence to be the reasonable rental value of the cars for the time of their detention. The defendant below sued out this writ of error. We have carefully considered the errors assigned, in the light of the very able briefs of counsel, but are unable to find merit in them. Judgment affirmed.