16 Tex. 382 | Tex. | 1856
The record presents but two instructions given at the instance of the plaintiff. The brief of counsel for the appellant mentions other instructions, as having been given ; and as the counsel have appeared only by brief, it is not improbable that the instructions of which they complain, were given, and inadvertently omitted in making up the transcript, and that the omission has escaped the notice of counsel. However, as there is no suggestion of a diminution of the record; we must take it that it is complete, for all the purposes of this appeal; whatever cause we may have, outside of the record itself, to suspect that, in point of fact, it is not. We are relieved from any embarrassment we might feel in deciding upon what we have reason to suspect is not a complete record, from the consideration, that, if the instructions set out in the brief appeared by the record, it would not materially vary the case. They may be obnoxious to criticism ; but, considered in connexion with the other instructions given, and in reference to the evidence, it is not perceived that there is any material error in the instructions, as they respect the defendant’s liability for his failure to return the negro according to his contract, and his misuse, or abuse of him, which occasioned Ms loss to the plaintiff.
To the objection, urged to the first instruction, said to have been given, that it did not embrace every predicament of fact, which it was necessary for the jury to consider in making up their verdict, it might be a sufficient answer, that other instructions given supplied the omission. It is not to be sup
'J he only defence, on which instructions were asked by the defendant, was the statute of limitations ; and the refusal of the Court to sustain this defence, as to so much of the suit as sought the recovery of damages for the breach of the contract to deliver the negro at the time appointed, is the principal ground of error relied on. It is material, therefore, to determine what period of limitation is applicable to the case.
It is admitted that the action is founded on a contract in writing ; but, it is insisted the limitation of four years does not apply, because it is not an “ action of debt.” It is true, it is not an action of debt, nor an action to recover a debt, technically so called. Technically, we have no such action as an action of debt: If we were to construe the statute literally, according to the technical signification of its terms, it is plain, the present case would not come within any of its provisions. It is not technically an action of debt, or an action to recover a debt; but it is an action to recover a sum of money, technically damages, founded on the breach of a contract in writing for the delivery of specific property. Under the common law forms, and the Statute of Westminster 2, the form of action would be case ; and the period of limitation, under the Statute 21st Jac. 1, c. 16, would be six years ; the same as in actions of debt founded on any simple contract; that is, any
As respects the sufficiency of the evidence, we are of opinion that it was sufficient to warrant the jury in finding that the failure to return the property to the plaintiff, and its loss, was caused by the wrongful acts of the defendant; amounting to an abuse and misuse of it; and the legal consequence is, that he is responsible to the plaintiff for its value. (Mills v. Ashe, supra ; Smith v. Chance, 7 Tex. R. 561 ; Mitchell v. Mims, 8 Id. 6.) The right of the plaintiff to recover the hire in this case, rests upon the same ground as his right to recover the value of the negro ; that is, that the loss to the plaintiff was occasioned by the wrongful acts of the defendant, for which
Judgment affirmed.