Robert M. Stell v. D. A. Paschal, 41 Tex. 640

Moore, Associate Justice. It is evident from the amount of the verdict the jury gave to appellee vindictive damages, or allowed him the amount of profits which he supposed he would have realized by the use of his gin, but for the wrongful detention by appellant of the press sued for. On either hypothesis it is quite manifest that the verdict is erroneous. That in a suit of this kind parties cannot recover for imaginary and speculative profits which they might, it is hypothetically supposed, have realized but for the wrongful acts of which they complain, is too manifest for discussion.

It is equally obvious that there is nothing shown in this case which warrants the giving of vindictive damages. If appellee succeeds in establishing his claim to the property in dispute, he is entitled, under the prayer of his petition, to an alternative judgment for the press sued for, or its value, and actual damages sustained by its wrongful detention, which, so far as we can see from the ease as it is presented by the record, would be the amount paid for the press, and to the wagoner who was employed to haul it, and interest from the date of payment to the finding of the verdict. (Gillies v.

Wofford, 26 Tex., 76; Brown, Adm’r, v. Tyler, 34 Tex., 168; Bell v. Cunningham, 3 Pet., 69; Concord v. Pacif. Ins. Co., 6 Peters, 262, 287; Sedg. on Dam., 615.) It may be possible, as is insisted by appellee’s counsel, if appellant had asked of the court proper instructions for the jury as to the measure of damages, that they would not have fallen into the error shown by their verdict.

But be this as it may, the failure of appellant to ask such instructions does not estop him from complaining of a clearly erroneous verdict, or justify the court in refusing a motion for a new trial upon this ground, even if there was no affirmative error in the charge of the court as given the jury. The court evidently, however, should have instructed the jury as to the legal effect of the instruments in writing offered in evidence by appellant in' justification of his detention of the property sued for.

And there was error in submitting their construction and legal effect to the jury, without instructions to guide them in the conclusion which should be drawn from these instruments, in connection with the other evidence submitted to them, whether instructions were asked by appellant or not. It was an error, though, of which appellant could not complain, unless it reasonably appeared that the jury misconstrued the instruments or reached an improper result, owing to the failure of the court to decide the questions of law, instead of submitting them to their determination.

The claim of appellant to the press, under the mortgages upon which he relies, presents a mixed question of law and fact. Of law, in so far as their construction is necessary to determine the legal effect of the contracts evidenced by them; of fact, in ascertaining whether the property in dispute is shown by the evidence to be a part of the property included in said contracts.

The clear import of these mortgages is to convey, for the purposes for which they were executed, the steam mill, gin press, engine, boiler, and all the machinery and apparatus thereto attached, which were on the premises described in the mortgages at the time they were executed, and all other machinery which should be subsequently placed on the premises by the mortgagors, or either of them, for the purposes of the business carried on by them on said premises at that time.

If, therefore, the press was placed on the premises described for the business in which the machinery on said premises had been previously used, for the purpose of supplying such as had been worn out or destroyed, or to enlarging and extending the business, it came within the terms of the instruments, and the lien given by them attached to it.

But if it was not placed on said premises by the mortgagors, but by some other person who was the owner of it, and it was not done for the purpose of or in connection with the business carried on by them on said premises, but merely to exhibit said press to the public, and to test its utility, this undoubtedly did not subject it to the mortgages.

And though it was afterwards purchased by Douglass, one of the mortgagors, if it was not bought with the intent of and was not in fact applied in any way to the uses and purposes of the business carried on upon said premises, but remained thereon solely as a place of deposit and safe keeping, then it is equally clear it did not thereby come within the terms and stipulations of the contracts by virtue of which appellant asserts a lien upon it. There are no other questions presented by the record of sufficient importance to require notice.

For the errors already indicated the judgment is reversed and the cause remanded. Reversed and remanded.