50 Tex. 143 | Tex. | 1878
Mitchell was in possession of and using about his gin and mill the running gear of a cotton gin which had been loaned to him by Gaston, but which Gaston only controlled by virtue of an ageneyfrom Stewart & Nunn to look after their interest in a certain league of land. On this league of land was the old Duren place, and from that place Mitchell, by Gaston’s permission, took the gin-gearing and used it for two years. Gaston sued out a writ of sequestration for the gin-gearing, which writ was executed by Constable Findley, who at first refused to allow Mitchell to replevy, being advised thereto by the justice who issued the writ, and, as Mitchell claims, being instigated by Gaston.
By the charge of the court on the subject of actual damages, Mitchell, not being the owner, ivas not allowed to recover the value of the sequestered property, but was allowed damages resulting from the loss of machinery from the gin and mill in which it was being used “ for such period of time as would have been sufficient to have enabled the plaintiff to have supplied himself with adequate machinery to put his business of ginning, grinding, &c., in operation again; and if the seizure and deprivation of the machinery had the effect to financially disable the plaintiff to restore his machinery by procuring other machinery, you will consider his losses consequent on that state of case, and give him such damages as will compensate him for the loss and injury sustained, taking into consideration all the circumstances, facts, and conditions under which he held the property, and his opportunity to have bought or leased the machinery from those having the title thereto, and deducting the amount of cost in buying or leas
As to the liability of Findley and his sureties for such actual damages as Mitchell suffered from the denial of his right to replevy and the detention of the sequestered property, there can be no question. (Holliman v. Carroll, 27 Tex., 25; Crocker on Sheriffs, sec. 864.)
Whilst Mitchell bad a statutory right to replevy, he was ' ultimately responsible for the use of the property whilst so replevied, if the right to the possession thereof was found to be in the plaintiff in sequestration. Whether, under the circumstances, the stoppage of his gin and mill, resulting from the detention of the sequestered gin-gearing, should be considered in estimating his damages, is a question on which we express no opinion, but to which we invite attention on another trial. (Sedg. on Dam., p. 482; Field on Law of Dam., 837.)
We are of opinion, however, that there was no evidence justifying the charge, which, in effect, extended the time for the accumulation of damages from loss of machinery, if the seizure or deprivation had the effect to financially disable plaintiff'. The plaintiff’ testified that “ it was hard to get such gearing as that was, and he lost two seasons before he could supply their place,partly for want of ability to buy and partly because it could not be obtained.” . This evidence (and there is none other haying any bearing on the point) we think insufficient to call for a charge based on the hypothesis that the plaintiff was financially disabled, by the seizure or deprivation of the machinery, from supplying its place. The fourth assignment of error is to this part of the charge, and, without having found it necessary to decide whether or not the legal principle laid down is abstractly correct or not, we think it-was not applicable to the case, and that it may have influenced the amount of damages allowed by the jury.
There is an assignment of error and bill of exceptions to the
The judgment is reversed and the cause remanded.
Beversbd and remanded.