It is apparent from the record that the point, upon which this case was supposed to turn by the court, as well as by the counsel for both parties, was whether the conveyance from Stewart so Wilkinson operated as a mortgage or a conditional sale; and evidently, from the instructions given the jury, the court regarded its determinartion as depending altogether upon the legal construction of the instrument itself, and was therefore to be decided by it and not by the jury.
The plain effect of the instructions given by the court, taken as a whole, is," that the instrument in question was a conditional sale, and that the jury should so regard and treat it, thereby discarding from their consideration in determining upon their verdict the facts and circumstances under which it was made, and tending to develop the object and purpose of its execution, and holding that its character and effect depended altogether upon its mere form and words, instead of the design, which the parties understood and intended it to subserve. This is, unquestionably, in conflict with the long train of decisions of this court from its very organization, holding that a trust may be engrafted on a written instrument by parol testimony, unless it could be said, as clearly it cannot, that there was. no testimony of this character before the jury to which they should have given any consideration whatever.
*452We make no comment upon the facts or the weight which they might have had with the jury. But certainly, in determining whether an instrument is intended to operate as a sale or a security, the fact that it is given on account of a pre-existing debt, that time of payment is extended, the disparity in the amount of the debt and the value of the property, the relative condition and situation of the parties, and pressure brought to bear to induce its' execution, and although the debtor might have succeeded in paying off almost the entire debt before the time fixed for the default, yet the consequences would be the same as if he had paid no part of it, should be considered in determining the real purpose of the parties and the true object intended to be accomplished by it.
As was said in the case of Huffier v. Womack, 30 Tex., 332, “ the circumstances from which, such contracts have their origin and the object generally intended to be obtained by at least one of the parties being frequently so nearly similar, it is often a matter of considerable embarrassment to say to which of these different classes of contracts a particular transaction properly belongs. Hor is it material what the papers themselves may say on the subject. The question is, what in fact was the contract and agreement of the parties ? If by it there was a continuing obligation against the appellees for the debt, the transaction must be declared a mortgage, although it was expressly stated in the deeds that the debt was fully satisfied, and that it was expressly understood and agreed that the contract was intended as a conditional sale, and not a mortgage; for, whether it is the one or the other, depends upon the construction placed by the law upon the real agreement between the parties, and not on what they have said about it.”
As the case must be reversed, it is proper for us to say, in view of another trial, that we do not concur in the conclusion which, as we have said, seems to have been taken for granted by the parties, as well as the court, on the former *453trial, that, unless the conveyance from Stewart was a conditional sale of the property to Wilkinson, he could not maintain an action for its recovery; for, although this may not have been its legal effect, we think, it may be held to be a pledge, accompanied with possession, vesting a qualified property in the wagon and mules in Wilkinson, by virtue of which he could maintain an action for their recovery against the real owner wrongfully detaining them, against Ms consent or against any one coming into possession from the owner with notice. But, in that case, the party making such pledge, or any one he might authorize to do so, could redeem the pledge at any time by tendering the debt and cost and damages incurred by Ms previous wrongful detention of the property.
We may also remark that if Wilkinson had become the absolute owner of the wagon and mules by payment of Stewart’s note to Bean, although he would have been entitled to recover for their hire, it was not proper to estimate the hire by proof of the value of their hire by the day. Such proof furnishes no reasonable criterion for an estimate for the length of time the jury were called upon to assess Mm. The result attained from such evidence glaringly exMbits its impropriety. It would have, been only an exaggeration in degree, but not more objectionable in principle, if the hire by the hour had been proved, and the aggregate amount fixed, multiplying this amount by the number of hours the wagon and mules had been detained.
Appellant, however, made no objection to the character of evidence, and the verdict is even more moderate than it might have been on Ms own testimony; therefore, although it is evidently erroneous, and was clearly calculated to induce an excessive verdict, it can hardly be said to be an error for wMch he could ask a reversal of the judgment, if in all other respects it was free from objection.
The judgment .is reversed and the cause remanded.
Reversed and remanded.