delivered the opinion of the court.
This suit was brought in the St. Louis Circuit Court to recover damages for the seizure by the defendants of a steamboat called “ Dubuque,” alleged to be the property of the plaintiff. The defendants, by their answer, put in issue plaintiff’s corporate existence, also its ownership and possession of the boat, and deny its wrongful seizure and detention. They also set up a counter claim, consisting of a promissory note for three hundred and thirty-three dollars and thirty-five cents, alleged to have been executed by plaintiff payable to the order of defendants. Plaintiff filed a replication denying the execution of the note. Judgment was rendered for plaintiff, to reverse which appellants rely upon several points, which we will notice in the order presented by the record:
1. It is contended that plaintiff had no power, under its act of incorporation, to purchase or own a steamboat. The act of incorporation was obtained for the purpose of carrying on the mining and transportation of coal, etc.; and hence, in the third and fourth sections power is given to the company
The evidence shows that plaintiff had a contract to deliver a certain quantity of coal at Jefferson city, and that the boat was used and employed for the purpose of conveying coal from the terminus of the railroad to Jefferson city and other points on the river, and for no other purpose whatever. It is not necessary to determine whether the power to own a steamboat is an incident to a corporation of this kind, in the absence of any prohibitory clause ; for we think the amendatory act above recited is broad enough in its provisions to confer the power upon the company, so long as the boat is confined to the legitimate business of the company. We have, moreover, a general statute relating to corporations, approved March 19th, 1845, the first section of which declares that every corporation, as such, has power to hold, purchase and convey such real and personal estate as the purposes of the corporation shall require, not exceeding the amount limited in its charter ; and in the second section it is provided that the powers enumerated in the preceding section shall vest in every corporation that shall hereafter be created, although they may not be specified in its charter, or in the act under which it shall be incorporated.
The instructions given by the court are unobjectionable. One of them asked by defendants, relating to the measure of damages, declared that the plaintiff could only recover the actual damage sustained by reason of the seizure of the boat.
The court very properly refused this instruction; for whether the boat could or could not have earned anything during the time she was in the custody of the sheriff, was a mere matter of speculation, with which the jury had nothing to do, and which was not susceptible of proof. The following is the second instruction refused: “ If the purpose of the plaintiff was to lay up said boat Dubuque during the month of November or December, 1857, the plaintiff cannot recover in this case for the time it was the purpose of said plaintiff to lay up said boat.” Upon what principle of law this instruction was'asked, we are unable to comprehend. If the plaintiff had determined to lay .up the boat for any given period, it could change that determination at any moment, it being a matter resting solely in the discretion and upon the will of the plaintiff. Third instruction refused: “ Unless the jury believe from the evidence that the plaintiff has sustained a greater amount of damages by the detention of the steamboat Dubuque than the amount of the note and interest set up by the defendants as a counter-claim, then they will find for the defendants for the amount of said note and interest, less the amount of damages they may find said plaintiff may have sustained.”
The refusal of the court to give this instruction did not operate to the prejudice of the defendants, for the jury in their verdict' specially found for the defendants the full amount of their counter-claim, and deducted it from the damages which they found the plaintiff had sustained.
Fourth instruction refused: “ If the jury find that plaintiff is entitled to recover for the taking and detention of the boat in question, then the measure of damages should be what
The objection to the second instruction applies with equal force to this. The jury will not be permitted to speculate as to what might be the probable or expected profits of a boat. (See Taylor v. Maguire, 12 Mo. 313.)
The fifth and sixth instructions refused relate to the ownership of the boat, and have already been disposed of.
The judgment will be affirmed,