* Headnotes 1. Carriers, 10 C.J., Section 371; 2. Sales, 35 Cyc., p. 519 (1926 Anno); 3. Sales, 35 Cyc., p. 519 (1926 Anno); 4. Damages, 17 C.J., Section 361. This is a replevin suit brought in the circuit court of Quitman county in August, 1923, by the appellee Clark-Hunt Contracting Company, against the appellant, Austin Machinery Corporation, to recover the possession of an Austin No. 12 drag line ditch and dredging machine valued at forty-three thousand five hundred dollars, which machine had been shipped over the Y. M.V. Railroad by appellant to the appellee at a station named Darling, under a contract of sale, with bill of lading to shipper's order, with draft attached and notes to be signed according to the terms of the contract of sale. The machine was in fact replevied from the railroad company, but the appellant shipper was substituted as the defendant in the place of the railroad company, and the trial upon the merits took place nearly one year after the writ of replevin was executed.
At the conclusion of the testimony the court granted a peremptory instruction to the jury to find the possession for the defendant, the appellant herein, and submitted the question of damages to the jury for the wrongful taking and detention, and the jury returned a verdict for two thousand, one hundred seventy-five dollars, which *Page 85 was the interest on the value of the machine from the time of taking to the date of the trial, as damages in favor of the defendant.
Both the plaintiff and the defendant being dissatisfied with the result of the trial, the appellant, Austin Machinery Corporation, the seller and shipper of the machine, defendant below, appeals directly from that part of the judgment as to damages, upon the ground that the court erred in limiting the amount of the recovery to six per cent. interest on forty-three thousand, five hundred dollars, the value of the machine at the time it was taken under the writ of replevin. The plaintiff below, direct appellee here, cross-appeals, on the ground that the court erred in granting the peremptory instruction to find the possession for the defendant, under the evidence in the case.
We shall state only so much of the case as is absolutely necessary to an understanding of the decision. Here it is: The Austin Machinery Corporation, domiciled at Toledo, Ohio, entered into a written contract with the appellees, Clark-Hunt Contracting Company, to sell the latter the dredging machine here involved for the sum of forty-three thousand five hundred dollars. The terms of the contract provided that the machine was to be shipped to appellee, who was to pay fourteen thousand five hundred dollars cash upon its arrival at Darling, Miss., and also execute two notes for fourteen thousand five hundred dollars each for the balance of the purchase money.
The machine was shipped with shipper's order bill of lading attached to draft for the fourteen thousand five hundred dollars to be paid by appellee, who was also to execute the two notes, in which event the bill of lading was to be delivered to appellee and it to then receive the machine from the railroad company. When the machine arrived the appellee purchaser, was notified by the bank to call and make the cash payment and execute the notes and receive the bill of lading for the machine. The appellee called at the bank, inspected the bill of lading, *Page 86 draft and notes, and without making any complaint thereat, failed and refused to pay the draft and execute the notes, but instead of doing so in accordance with the contract between the parties, the appellee immediately sued out the writ of replevin herein, took possession of the machine and gave bond for it to await the result of the trial, and proceeded to use the machine in its ditching and dredging work.
The testimony at the trial showed conclusively, as we view this record, that the appellee, plaintiff below, was not entitled to the possession of the machine because it had not complied with the terms of the written contract of sale, with reference to the payment of the draft for fourteen thousand five hundred dollars and the execution of the notes for the balance of the purchase money, and therefore was not entitled to the bill of lading with which to obtain possession of the machine from the railroad company at the point of destination.
We have considered carefully the contention of appellee with reference to the accommodation note given by appellee to appellant before the shipment was made, but we are unable to see wherein this part of the transaction between the parties could have had any effect upon the terms and requirements of the undisputed written contract (as well as the oral testimony supporting it), upon which the sale and shipment were finally made. Therefore we shall at once dispose of the cross-appeal by holding there is no merit in it, and as to it the judgment must be affirmed.
Now, as to the direct appeal, which is based upon the one ground that the lower court erred in announcing by instructions the measure of damages recoverable by the appellant for the wrongful taking, detention and use of the machine by appellee for about ten months before the date of the trial. The exact complaint of the appellant on the direct appeal is that the court, by instruction No. 2 granted the plaintiff below, which in part is in the following language: *Page 87
"The court further instructs the jury that the measure of the damages which you are permitted under the law to award to the defendant is six per cent. interest on such value as fixed by you, from August 14, 1923, to date, unless you believe from a preponderance of the evidence in this case that in suing out the writ of replevin herein the plaintiff was actuated by motives of malice, oppression, or willful wrong" — limited the jury to an allowance of interest on the purchase price of the machine as the only recoverable damages suffered by the defendant. To put it in another way, the appellant contends that it should have been permitted to recover such actual damages as was shown that it suffered on account of the depreciation in the market value of the machine on account of the detention, use, and injury to it between the time of its taking and the date of the trial. The appellee opposes this claim on the theory that no damages may be allowed in such case for the depreciation in the market value of the machine, because, as contended, the interest on the market value of the machine at the time it was sold is all that can be recovered under certain decisions of this court; and for a further reason, that the proof does not show the machine was actually damaged by the appellee in its detention and use of it in dredging ditches.
We have reviewed the decisions referred to by counsel on both sides, and we are unable to find any pronouncement which limits the recovery of damages to the interest on the value of the property, where the property is wrongfully detained and injured and damaged by its use and thereby depreciated in value. The cases cited and relied upon by the appellee only go to the extent of holding that where there is a depreciation in the market value of the property which is not occasioned by the person who wrongfully detains it — that is, that the person wrongfully detaining the property has not injured or damaged it by use — then the measure of damages for the wrongful taking and detention would only be the interest on the value of the property when taken, provided *Page 88 it is returned in the same condition as when wrongfully taken. But, as we see it, the case before us is quite different from those cases cited by counsel wherein the rule mentioned was applied.
The case at bar, as disclosed by the record, shows a taking and detention of the property without any right or good reason therefor, and that while detained it was used for many months and was injured and damaged by such use, and the ordinary wear and tear incident to such wrongful use also decreased its value, and its market value was thus and thereby depreciated, as some of the witnesses testify, more than twenty thousand dollars; and it is our opinion the defendant below was entitled to recover for depreciation on account of such actual damage to the machine, as is shown by the evidence was caused by its detention and use while it was held and used in digging ditches and the dredging work for many months. This depreciation in the market value of the property, for which we say damages may be recovered, was not due to any fluctuation in the market value of such machines, but the depreciation in value was due to the damage done the machine by detaining and using it for several months.
Therefore we think the court erred in granting the instruction which limited the amount of recovery of damages to the interest on the value of the machine, but the court should have allowed the jury to pass upon the question of actual damages resulting from depreciation on account of the use, wear, and tear and injury of the machine while wrongfully detained by the appellee. Therefore the judgment of the lower court as to the amount of damages allowed the appellant will be reversed, and the case remanded, for the purpose only of assessing the proper amount of damages which the appellant is entitled to recover.
The elements of damage which the appellant, Austin Machinery Corporation, is entitled to recover in this case are, viz., interest on the market value of the new machine *Page 89 from the time it was taken up to the time it is redelivered, if it should be redelivered; the depreciation in the market value of the whole machine on account of its use, wear and tear and damage by injury; and also the jury should be permitted to pass on the question of punitive damages for the wrongful taking and detention of the machine.
We know of no rule authorizing a court to compel a jury to inflict punitive damages, so we go no further in that regard than to say that this record discloses a case where the jury would be well warranted in punishing the appellee, Clark-Hunt Contracting Company, for its manifest wrongful taking and detention of the property involved in this case.
The judgment as to the damages allowed the appellant will be reversed and the case remanded for a new trial on the question of damages alone; that part of the judgment awarding the possession of the machine to the appellant is affirmed on cross-appeal.
Affirmed in part, reversed and remanded in part.