In Maine, the plaintiff in a replevin suit for ice, gave a bond,
with sureties, to the defendant in the penalty of $30,000
conditioned to prosecute the suit to final judgment and pay such
damages and coats as the defendant should recover against them,
"and also return and restore the same goods and chattels in like
good order and condition as when taken, in case such shall be the
final judgment." The ice was stated in the bond to be of the value
of $15,000. In the suit there was a judgment for a return of the
ice to the defendant, and for an amount of damages ascertained by
the jury by allowing interest from the time the ice was taken, on a
sum found to have been its value where and when it was taken, and
also allowing the expenses of the defendant in preparing to remove
the ice. The damages were paid, but the ice was not returned. In a
suit on the bond,
Held:
(1) The plaintiff in that suit was entitled to recover what the
jury in the replevin suit had found to have been the value of the
ice where and when it was taken, with interest thereon from the
date of the verdict in the replevin suit.
(2) It was not competent for the obligors in the bond to show
that the ice was of less value than the amount stated in the writ
of replevin and the bond, but it was competent for the obligee to
show that such value was greater.
(3) The finding of the jury in the replevin suit as to the value
of the ice where and when it was taken was competent and conclusive
evidence, as against the obligors, of such value.
Page 125 U. S. 427
Debt upon a replevin bond. Judgment for plaintiff. Defendant
sued out this writ of error. The case is stated in the opinion of
the Court.
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
On the 12th of August, 1870, the Washington Ice Company, a New
York corporation, procured from the Supreme Judicial Court of the
State of Maine a writ of replevin, directed to the Sheriff of the
County of Lincoln, in that state, commanding him to replevy
"a certain lot of ice, being about thirty-eight hundred tons of
ice, now lying and being in certain ice houses situate in the Town
of Boothbay, in the County of Lincoln and state aforesaid, and
owned or occupied by Nathaniel Webster, of Gloucester, in the
County of Essex and Commonwealth of Massachusetts, of the value of
fifteen thousand dollars, belonging to the Washington Ice Company,
. . . now taken and detained by Nathaniel Webster, . . . and them
deliver unto the said the Washington Ice Company,"
and summon the defendant to appear before the court within and
for the County of Lincoln on the fourth Tuesday of October, 1870,
to answer unto the plaintiff in a plea of replevin for that the
defendant on the 1st of August, 1870 at said Boothbay, unlawfully
took the goods of the plaintiff as aforesaid and them unlawfully
detained,
"provided they, the said plaintiffs, shall give bond to the said
defendant, with sufficient sureties, in the sum of thirty thousand
dollars, being twice the value of the said goods and chattels, to
prosecute the said replevin to final judgment, and to pay such
damages and costs as the said defendant shall recover against them,
and also to return and restore the same goods and chattels in like
good order and condition as when taken, in case such shall be the
final judgment."
The sheriff made a return to the writ dated August 13, 1870, as
follows:
"By virtue of this writ, I have taken the ice
Page 125 U. S. 428
within named as the property of the within-named Washington Ice
Company, and on the 19th day of August, A.D. 1870, I delivered said
ice to Hiram Perkins, whom the Washington Ice Company designated as
their agent to receive said ice, and on the 19th day, I summoned
the within-named Nathaniel Webster, by reading this writ in his
presence and hearing, for his appearance at court, the quantity
replevied, by actual weight, being about twenty-five hundred
tons."
Webster pleaded the general issue to the writ at October term,
1871, and filed a brief statement and special matter in defense,
setting forth that at the time of the alleged taking, as stated in
the writ, the ice named therein was not the property of the
plaintiff, nor had the plaintiff any right to the possession
thereof, but it was the property of the defendant and one Babson,
and was rightfully in the possession of the defendant, and was
wrongfully taken from his possession by the plaintiff, and prayed
judgment for the return of the ice in like good order and condition
as when it was taken from the possession of the defendant, and for
damages for such taking and detention, and for costs.
The case came on for trial before a jury and evidence was put
in, but the case was taken from the jury and submitted to the full
court on the report of the evidence by the judge, and transferred
to the Supreme Judicial Court for the Middle District. It was there
heard, and is reported as
Ice Co. v. Webster, 62 Me.
341.
It is there stated that the case came before the full court
under an agreement that if the action was maintainable, it was to
stand for trial, but otherwise a nonsuit was to be entered. On June
26, 1874, the order of the full court was received in these
words:
"The nonsuit to stand, judgment for return of the goods
replevied, damages to the time of taking to be assessed at
nisi
prius, if the defendant so elect, or he may, if he prefer,
resort to his remedy on the bond."
The case was then continued to October term, 1874, when the
defendant elected to have his damages assessed by a jury. The case
was then continued to April term, 1875, when leave was granted to
the officer who served the writ to amend his
Page 125 U. S. 429
return thereon in accordance with the facts, and thereupon he
made the following as his amended return, which was allowed by the
court, such amended return bearing date August 13, 1870:
"By virtue of this writ, having first taken a bond as prescribed
by law, I have this day replevied all the ice by me found in the
ice houses within mentioned, all of which said ice I caused to be
weighed on delivery at the wharf in said Boothbay, about three
miles from said ice houses, being the nearest place thereto where
ice could be shipped -- twenty-two hundred and ninety-seven tons
and nineteen hundred and twenty-one pounds of which was thus
weighed on successive days, portions of it on each week day between
the 23d day of August, 1870, and the 16th day of September, 1870,
and thirty-three tons and nineteen hundred and thirty pounds
thereof was thus weighed on three several days between the 26th day
of September, 1870, and the 26th day of October, 1870, the whole of
said ice thus taken by me weighing twenty-three hundred and
thirty-one tons and eighteen hundred and fifty-one pounds, and, on
the 19th day of August, 1870, I delivered all the said ice at said
ice houses to the plaintiff, reserving to myself authority to weigh
the same, and on the 19th day of said August, I summoned the
within-named Nathaniel Webster to appear at court, as within
directed, by reading this writ aloud in his presence and
hearing."
The action of replevin was tried by a jury, and the presiding
judge submitted to them to find, in addition to their verdict,
answers to two questions, and the jury, on the 14th of May, 1875,
returned the following verdict:
"The jury find that the defendant was damaged by reason of the
taking of the property replevied in the suit, and assess damages
for the defendant in the sum of six thousand five hundred and
fifty-five dollars."
They also returned answers as follows to the questions submitted
to them:
"First. What was the value of the ice replevied, where it was
situated at the time it was taken in this suit? Answer. Twenty
thousand and sixty-nine dollars and thirty-three cents. Second.
What damage did the defendant sustain by reason of the taking of
the ice in
Page 125 U. S. 430
replevin on account of the preparations he had to make to remove
it? A. Eight hundred and thirty-five dollars and twenty-five
cents."
The plaintiff filed exceptions to the rulings of the judge in
matters of law, and also moved to set aside the verdict. The
evidence was reported to the full court, and the case was
transferred to the Supreme Judicial Court for the Middle District,
where it was heard, and is reported as
Washington Ice Co. v.
Webster, 68 Me. 449. The decision of the court was that the
motion and exceptions should be overruled. Thereupon a judgment was
rendered by the lower court on the 4th of May, 1878, that the
property replevied be returned and restored to Webster
irrepleviable, and that he recover against the Washington Ice
Company $7,723.98, damages for the taking and detaining of the
property replevied, being the amount of the verdict, with interest
thereon to the date of the judgment, and also $477.67 costs of
suit.
On the 31st of July, 1878, a writ of return was issued on the
judgment. It recited that the Washington Ice Company had replevied
the 2,331 tons and 1,851 pounds of ice, of the value of $20,069.33,
and set forth the terms of the judgment for the return, and for the
recovery of the $7,723.98 damages for the taking, and the $477.67
costs, and commanded the sheriff that he forthwith return and
restore the said property to Webster and collect the said sums of
money from the Washington Ice Company, with interest from the 4th
of May, 1878. On the 19th of August, 1878, a demand was duly made
upon the Washington Ice Company for the return of the ice mentioned
in the writ of restitution.
On the 17th of September, 1878, the Washington Ice Company paid
to Webster $8,379.36, in full for such damages and costs, and
interest. The receipt given by Webster for the amount contained
this clause:
"This receipt not to affect any further claim of the
within-named Webster for the ice named in said writ or for any
further damages or costs that may be recovered or recoverable by
said Webster."
Before delivering the ice to the plaintiff in the original writ
of replevin, the sheriff, as commanded by the writ, and as
Page 125 U. S. 431
stated by him in the amended return, exacted a bond in the
penalty of $30,000, dated August 12, 1870, executed by the
Washington Ice Company, as principal, and Josiah H. Drummond and
William E. Gould, to Webster, the condition of which was as
follows:
"The condition of the above obligation is such that whereas the
said the Washington Ice Company have this day commenced against the
said Nathaniel Webster an action of replevin for a certain lot of
ice, being about thirty-eight hundred tons of ice, now lying and
being in certain ice houses situate in the Town of Boothbay, in the
County of Lincoln, and State of Maine, owned or occupied by
Nathaniel Webster, of Gloucester, in the County of Essex and
Commonwealth of Massachusetts, of the value of fifteen thousand
dollars, which they say the said Nathaniel Webster has unlawfully
taken, now therefore if the said the Washington Ice Company shall
prosecute the said replevin to final judgment and pay such damages
and costs as the said Nathaniel Webster shall recover against them,
and also return and restore the same goods and chattels in like
good order and condition as when taken, in case such shall be the
final judgment, then the said obligation to void; otherwise to
remain in full force."
On the 13th of February, 1879, Webster brought the present
action of debt in the Circuit Court of the United States for the
District of Maine against the Washington Ice Company and Drummond
and Gould, founded on the said bond. The defendants appeared, and
by their plea prayed oyer of the bond and its condition, and set
forth the condition, and pleaded that they had kept all the
conditions of the bond, except the following, namely, "and also
return and restore the same goods and chattels in like good order
and condition as when taken, in case such shall be the final
judgment;" that, as to that condition, they had not kept it; that
final judgment had been rendered against them in the replevin suit
mentioned in the condition, for a return of the goods and chattels
replevied therein; that they had not returned the same to the
plaintiff according to the requirement of said condition, and that
they therefore submitted to the judgment
Page 125 U. S. 432
of the court, and prayed that they might be heard by the court
in equity in the assessment of the damages for the breach of the
last-mentioned condition. On the 12th of October, 1880, the
defendants filed an offer to be defaulted, and that judgment might
be rendered against them for $16,000 and legal costs, and execution
might issue against them for the same. That offer was declined by
the plaintiff on the 1st of November, 1880. At September term,
1882, the case was tried before the circuit court on the filing of
a written stipulation waiving a jury. At the conclusion of the
trial, the court directed a judgment for Webster against the
defendants to be entered for $28,990.14 and costs, which was done.
To review that judgment, the defendants have brought this writ of
error.
There is a bill of exceptions, upon which various questions are
raised by the plaintiffs in error. At the trial, the plaintiff
introduced in evidence the original writ of replevin in the suit in
the state court, the return and the amended return, the pleadings
in that suit, the record of the judgment and of the proceedings of
the court therein, and the two orders of the full court. The
defendants objected to the admission of the following question to
the jury and their answer thereto, recited in the record of the
proceedings in the replevin suit, namely:
"What was the value of the ice replevied, where it was situated
at the time it was taken in this suit? Answer. Twenty thousand and
sixty-nine dollars and thirty-three cents."
The court overruled the objection, and admitted the question and
answer, and the defendants excepted.
The plaintiff then introduced in evidence the writ of return,
and the fact of the making upon the defendants of the demand for
the return of the ice replevied, and the receipt given by him to
the Washington Ice Company for the damages, costs, and interest
awarded by the judgment of May 4, 1878. He also introduced in
evidence the bond sued upon.
The bill of exceptions then proceeds as follows:
"The plaintiff thereupon contended, that the defendants were
estopped to deny that the goods replevied were at least of the
value set forth in the writ of replevin and in the replevin
Page 125 U. S. 433
bond (being the bond in suit), at whatever time that value is to
be assessed, but that the plaintiff was not precluded from showing
that they were of greater value."
"The defendants claimed that they were not thus estopped or
precluded, and offered evidence to show that the value of the ice
replevied was less than ten thousand dollars at whatever time such
value is to be assessed, and submitted to the court the following
prayer for a ruling on this subject,
viz., that the
defendant are not estopped to prove that the value of the goods
replevied was less than fifteen thousand dollars by reason of the
insertion of that sum in the replevin writ and bond as the value of
the goods which the officer in that writ was commanded to
replevy."
"The court rejected the evidence offered and overruled this
prayer of the defendants, and ruled that the defendants are
estopped as is contended by the plaintiff and that the plaintiff is
not precluded from showing that the value of the goods replevied
was more than fifteen thousand dollars; to which rejection of
evidence and ruling the defendants then excepted."
"The defendants contended that the statement of the officer who
served the replevin writ, in his returns thereon, of the quantity
of goods actually taken by him on the writ of replevin is competent
and conclusive evidence of that quantity in the trial of this
action upon the replevin bond, and submitted to the court a prayer
for a ruling to that effect."
"The plaintiff contended that the statement of the officer in
his return of the quantity of ice replevied, being indefinite in
the first return, and in the amended return being of weights taken
at a different place from that at which the ice was replevied, and
at subsequent times from that of the taking, was not evidence of
the quantity of the ice replevied."
"The court overruled the said prayer of the defendants in this
respect, and ruled that neither of the returns was conclusive
evidence of the quantity taken by the officer upon the replevin
writ. To which rulings the defendants then excepted."
"It was admitted by the plaintiff that the damages which were
assessed in the action of replevin for the taking and detention by
the plaintiff in that action of the property
Page 125 U. S. 434
replevied therein, with the interest thereon, and the costs
recovered in that action, with interest thereon, have been fully
paid, and that the judgment in that action, awarding to the
defendant in the same the sum of seven thousand seven hundred and
twenty-three dollars and ninety-eight cents damages, and his costs
of suit taxed at four hundred and seventy-seven dollars and
sixty-seven cents, has been fully satisfied."
"Thereupon the defendants contended that the damages which the
plaintiff is entitled to recover in this action are the value of
the goods replevied, or of goods of like description, character,
and intrinsic value at the date of the judgment in the action of
replevin, and of the order therein that the property replevied be
returned and restored to the said Nathanial Webster, with interest
thereon, and they offered evidence to prove that the value of ice
of like description, character, intrinsic value, and quantity as
that replevied at the place where the ice was replevied, and also
at the place where the demand upon the writ of return was made, was
less than ten thousand dollars at that time. The court rejected the
evidence offered, and overruled this prayer of defendants. To which
rejection of evidence and ruling defendants then excepted."
"The defendants thereupon offered evidence to prove that the
value of the ice replevied was less than ten thousand dollars at
the time the demand was made upon the defendant, the Washington Ice
Company, upon the writ of return issued pursuant to the judgment in
the action of replevin for a return of the goods replevied,
viz., August 19, A.D. 1878, and presented a prayer to the
court for a ruling that the damages which the plaintiff is entitled
to recover in this action are the value of the goods replevied, or
of goods of like quantity, description, character, and intrinsic
value as those replevied at the date of said demand. But the court
rejected the evidence offered, overruled this prayer of the
defendants, and ruled that the plaintiff in this action is entitled
to recover the value of the ice replevied at the time it was taken
by the officer upon the replevin writ, to which rejection of
evidence and rulings the defendants then excepted."
"The plaintiff contended that the finding of the value of
Page 125 U. S. 435
the ice replevied, by the jury which assessed the damages for
taking the ice upon the replevin writ, against the plaintiff in
that suit, in answer to the question submitted to them in that
trial, 'What was the value of the ice replevied, where it was
situated at the time it was taken in this suit?' as appears in the
record of the proceedings in the action of replevin, is evidence in
this action upon the bond, and is conclusive against the defendants
of the value of the ice, in determining the amount which the
plaintiff is entitled to recover in this action, and moved the
court for an entry of judgment against the defendants, for the sum
found by the jury in answer to that question,
viz., the
sum of twenty thousand and sixty-nine dollars and thirty-three
cents, with interest thereon from the date of that finding, and
that execution issue for such sum."
"The defendants resisted this motion, and contended that the
value of the ice replevied was not a legal issue in the replevin
action, and that they were not precluded from showing that the
value of the ice was less than the sum thus found, and that said
question and answer were not evidence to be taken into
consideration in determining the amount which the plaintiff is
entitled to recover in this action upon the bond, and they further
contended that if the finding of value in the action of replevin
furnished the rule of damages to be assessed in this action,
interest thereon should be cast only from the date of the demand
upon the writ of return, and not from the date of that finding by
the jury."
"The court overruled the defendants' position, sustained the
motion of the plaintiff, and ruled that the finding of value by the
jury in the action of replevin was conclusive against the
defendants, and ordered judgment to be entered for the sum of
twenty-eight thousand nine hundred and ninety dollars and fourteen
cents damages, and that execution issue for that sum, that being
the amount of the said sum of twenty thousand and sixty-nine
dollars and thirty-three cents with interest thereon from the date
of said finding, May 14, 1875, to which rulings of the court,
order, and decision, and entry of judgment for damages, and each
and every of them, defendants then excepted. "
Page 125 U. S. 436
The positions of the parties as thus set forth in the bill of
exceptions are those taken by them on the argument before this
Court. The material question in the case is what damages the
defendants shall pay for the failure to return the 2,331 tons and
1,851 pounds of ice to the plaintiff after judgment for its return
was rendered. The jury in the replevin suit assessed the damages of
Webster at the sum of $6,555. They also found the value of the ice
replevied, where it was situated at the time it was taken in the
replevin suit, to have been $20,069.33. The ice was taken under the
writ of replevin on the 13th of August, 1870. The verdict of the
jury was rendered on the 14th of May, 1875. The interest on
$20,069.33 at the rate of six percent per annum from August 13,
1870, to May 14, 1875, a period of four years and nine months, was
$5,719.75. Add to that the sum of $835.25 found by the jury to be
the damage sustained by Webster by reason of the taking of the ice
in replevin on account of the preparations he had to make to remove
it, and it makes a total of $6,555, which was the exact amount
assessed by the jury as damages by reason of the taking of the
property replevied. Thus, in the judgment in the replevin suit,
Webster recovered as damages, in addition to the $835.25, interest
at the rate of six percent per annum on $20,069.33, the value of
the ice, where it was situated at the time it was taken, from
August 13, 1870, to May 14, 1875, and in the present suit he has
recovered on the bond the sum of $20,069.33, as the value of the
ice, where it was situated at the time it was taken, and interest
on that sum at the rate of six percent per annum, from May 14,
1875, to the date of the verdict of the jury in the present suit,
such interest amounting to $8,920.81. Therefore, in the two suits
together, Webster has recovered as the value of his ice unlawfully
taken from him by the writ of replevin on the 13th of August, 1870,
its value as it was situated at that time, $20,069.33, and interest
thereon from that date at six percent per annum to the date of the
verdict of the jury in the present suit on the bond. This is equal
and exact justice, and no more, so far as he is concerned. So far
as the principal and the sureties in the bond are concerned, they
obligated themselves
Page 125 U. S. 437
that the principal should return and restore the goods taken on
the writ of replevin, "in like good order and condition as when
taken." The article taken was ice, a perishable commodity. None of
that taken on the 13th of August, 1870, can be supposed to have
been in existence when the judgment of May 4, 1878, for its return
was rendered, or when the writ of return of July 31, 1878, was
issued, or when the demand of August 19, 1878, for the return, was
made. The same quantity of ice which was taken on the writ was, by
the bond, to be returned, in like good order and condition as when
taken. If a part of it had been returned in like good order and
condition, and the rest of it had not been returned at all, or
returned not in such like good order and condition, the obligors in
the bond would have been liable for the value at the time when
taken of what was not returned, and for the depreciation in value
of what was not returned in like good order and condition. In no
other manner could the condition of the bond have been satisfied
and the defendant in the writ of replevin have been made whole
according to the intent and purpose of the writ and of the bond and
of the statute of Maine under which the bond was given. The writ
and the bond were in the form prescribed by statute.
The principal argument on the part of the defendants in the
present suit is that in the statute of Maine, Rev Stat. 1857, 1871,
c. 96, § 11, which provides that in a replevin suit,
"if it appears that the defendant is entitled to a return of the
goods, he shall have judgment and a writ of return accordingly,
with damages for the taking and costs,"
the words "damages for the taking" mean all damages resulting
from the taking and detention of the goods; that if the defendant
in replevin recovers judgment for a return of the goods replevied,
he may at his election have the damages which he has sustained by
reason of the taking and detention of them to the time of such
judgment assessed in the replevin suit, or he may recover those
damages in a suit on the bond, but cannot have both; that if he
elects, as he did in the present case, to have his damages assessed
in the replevin suit, he cannot, in a subsequent suit on the bond
founded on a failure to return the
Page 125 U. S. 438
goods, recover any damages which accrued prior to the judgment
in the replevin suit, and therefore cannot recover for any
depreciation in the value of the goods which occurred between the
time of the taking and the date of the judgment of return; that any
damages collectible for such depreciation must, if the defendant
makes the election referred to, be assessed in the replevin suit as
an item of damages resulting from the detention of the goods, and
that as the plaintiff in this suit failed to have such damages
assessed in the replevin suit, he cannot recover them in the
present suit.
This point seems to us, at best, to be altogether technical, and
not to be founded on any sound principle. By the terms of the bond,
it was made enforceable against the principal and sureties if the
principal should not pay such damages and costs as Webster should
recover against it and should not also return and restore the goods
replevied in like good order and condition as when taken. Under the
condition of the bond, the sureties were liable to pay the damages
recovered against the principal by the judgment of May 4, 1878, in
case the principal had not paid them, as it did. By the judgment in
the present suit, they are only made liable according to their
obligation that their principal shall return and restore the goods
in like good order and condition as when taken. Such we consider to
have been the effect of the rulings of the state court in the
replevin suit in 62 and 68 Maine.
In the case in 62 Maine, the court, commenting upon the
above-recited provision of the Revised Statutes of 1871, c. 96, §
11, says (p. 361):
"When the defendant makes a good title to the goods replevied,
he is entitled to damages for the interruption of his possession,
the loss of the use of the goods from the time of their replevin
till their restoration, and for their deterioration."
It also says (p. 362):
"The damages are to be assessed to the time of the verdict for
the defendant, upon the principles adopted in trover, save that the
value of the property is not to be included therein."
It also says (p. 363):
"It seems therefore fully settled that in a replevin suit when
damages are not assessed at
nisi prius, or where a nonsuit
is entered, the defendant, when the property replevied is not
returned
Page 125 U. S. 439
may recover all damages sustained, in a suit upon the replevin
bond."
It also says (p. 363) that the plaintiff
"is bound by his replevin bond to restore the goods in like good
order and condition as when taken. He is responsible, if judgment
is against him, for the damaged or deteriorated condition of the
goods when restored."
Again, it says (p. 364):
"When goods not held under legal process are replevied, and
after entry of the action the plaintiff becomes nonsuit and a
return is ordered but the goods replevied are not forthcoming on
demand, the defendant, in a suit on the bond, is entitled to
recover, as damages, the value of the goods when taken, and
interest thereon from the service of the writ to the time of the
rendition of judgment."
Again (p. 364):
"If the market value of the goods replevied shall be less at the
time of the demand on the writ of return than when the goods are
taken, the loss must fall on the plaintiff, by whose wrongful act
the defendant is deprived of his property. Besides, the plaintiff,
having possession, might have sold them, which the defendant could
not do."
It is contended for the defendants that in this suit on the
replevin bond, Webster is entitled to recover as damages only the
value of the goods replevied on the 19th of August, 1878, the date
of the demand on the writ of return, with interest thereon, and
some expressions of the court in the decision in 62 Me., supposed
to tend in that direction, are referred to. But they are wholly
inconsistent with the other expressions of the court above quoted,
and contrary to reason and justice in their application to the
present case and also to authority.
One of the expressions thus relied on by the defendants is this
(p. 363):
"The damages being assessed to the time of the verdict, if the
goods replevied are not forthcoming on demand on the writ of
return, the defendant, in a suit by him on the replevin bond, will
be entitled to recover as damages the value of the goods replevied
at the date of the demand on the writ of return, with interest
thereon, the damages and costs assessed in the replevin suit, and
interest.
Swift v. Barnes, 16 Pick. 194."
But a reference to the case of
Swift v. Barnes shows
that the remark of the court had reference to a case where the
value of the property replevied had risen
Page 125 U. S. 440
at the time of the demand on the writ of return beyond what it
was at the time it was taken. The Massachusetts statute and
practice in regard to replevin are the same as in Maine. The
principle declared in
Swift v. Barnes was that the
successful defendant in replevin was entitled to a full indemnity;
that the plaintiff in replevin, who caused the property to be
valued, might well be bound by the valuation when it was made to
appear that the action was groundless; that it by no means followed
that the other party, who had no agency in the valuation, was also
to be bound; that the plaintiffs in the suit on the bond were
entitled to a full indemnity for the damages sustained by the
nonperformance of the condition of the bond, and that could not be
obtained unless they should be allowed to recover the actual value
of the property replevied at the time when it ought to have been
restored on the writ of restitution, and that in the case then
before the court, that was the true measure of damages.
In
Parker v. Simonds, 8 Met. 205, it is said that the
property in
Swift v. Barnes had risen in value after it
was replevied, and in
Parker v. Simonds, as some of the
property had been sold at the time of the demand and some was
deteriorated and depreciated in value by use, the court said that
the value at the time of the demand would not be the measure of
damages without a proper allowance for the depreciation.
The rule in Massachusetts seems well settled. In
Leighton v.
Brown, 98 Mass. 515, which was a suit on a replevin bond, the
value of the property at the time of the demand for its return was
greater than the penal sum of the bond, but though the obligors
contended that the proper measure of damages was its appraised
value or its value at the time it was replevied, the court
said:
"The appraisal made in the replevin suit is conclusive against
the party by whom it was made.
Parker v. Simonds, 8 Met.
205. But it is not admissible in evidence against the present
plaintiff, who, as defendant in the replevin action, had no agency
in procuring this valuation.
Kafer v. Harlow, 5 Allen 348.
In the present case, the value was greater at the date of the final
judgment ordering a return
Page 125 U. S. 441
than at the date of the appraisal. The value at the date of a
demand for the restoration of the property in compliance with the
order of return is the measure of damages for which the plaintiff
contends, and to which, in the opinion of the court, he is
entitled.
Swift v. Barnes, 16 Pick. 194."
In
Tuck v. Moses, 58 Me. 461, the market value of the
replevied property had increased from the time it was replevied to
the time of the judgment for a return, and it was held in a suit on
the bond that the defendants were liable for the value of the
property at the date of the judgment for a return, with interest at
six percent from the date of that judgment to the date of the
judgment on the bond. It is therefore manifest that the court, in
its opinion in 62 Me., did not mean that the time of the demand on
the writ of return was to be taken as the time for fixing the value
of the property in any other case than one where there had been an
increase in the value from the time of the taking, to the benefit
of which increase the defendant in the replevin suit was
entitled.
We see nothing inconsistent with these views in
Stevens v.
Tuite, 104 Mass. 328. In that case, the defendant in a
replevin suit had a judgment therein for a return, and for damages
assessed by computing interest on the appraised value of the goods
replevied, from the date of the writ of replevin to the date of the
judgment, and, in a subsequent suit on the bond, he sought to
recover not only the value of the property, with interest from the
date of the demand under the judgment, but damages for
inconvenience and loss resulting from the interruption of the
possession of the property, which was the machinery of a
manufactory, and damages for the expense, trouble, and delay
attending the restoration of the establishment to its original
condition. It was held that these damages were included in the
damages recoverable in the replevin suit. The case was a peculiar
one, and the defendant in the replevin suit did not, as in the
present case, ask merely for an allowance as damages of a
continuation of the interest on the value of the property when
taken from the time of the verdict in the replevin suit to the time
of the verdict in the
Page 125 U. S. 442
suit on the bond, and the court did not pass on that
question.
The decisions in Maine support the views taken by the circuit
court. In
Smith v. Dillingham, 33 Me. 384, in a suit on a
replevin bond, the value of the property replevied, as valued in
the writ, was allowed, with interest from the date of the bond. The
interest was objected to. No damages had been assessed in the
replevin suit. The court said:
"If damages for the taking had been assessed, as the statute
provides, up to the time when the nonsuit was ordered, the estimate
of damages in this suit for the detention would have commenced at
that period. But the record shows that no such assessment was made.
The wrong done to the plaintiffs consists in the taking of their
property and in the delay of making compensation for it. There is
nothing in the statute which precludes the allowance of interest on
the value of the property from the time when it was taken."
It certainly can make no difference in principle that part of
such interest is allowed in the replevin suit and part in the suit
on the bond, so long as there is no duplication.
In
Thomas v. Spofford, 46 Me. 408 the case of
Smith
v. Dillingham is cited by the court as authority for the
proposition that in a suit on the replevin bond the plaintiff may
recover damages for detention although they were not assessed in
the judgment in the replevin suit.
The opinion of the court in 68 Me. contains nothing to support
the views of the defendants. In that opinion, it is said (p.
459):
"When this cause was first tried, the presiding justice was of
opinion that the action was not maintainable and that the
defendant's claim for damages for the plaintiff's unlawful taking
could only be determined in a suit upon the replevin bond. By
agreement of parties, the case was withdrawn from the jury, to be
reported to the full court. If the action could not be maintained
upon the evidence offered and introduced by the plaintiffs, a
nonsuit was to be entered. If the action could be maintained, it
was to stand for trial, and the court were also authorized to pass
upon the several propositions in respect to damages made by the
defendant's counsel.
Page 125 U. S. 443
Upon a full hearing of the questions of law raised upon the
report, it was determined that the action was not maintainable, and
a nonsuit in pursuance of the agreement of the parties was ordered.
It was further decided that the defendant had a right to have his
damages assessed. 62 Me. 341."
The trial court had instructed the jury as to damages as follows
(p. 452):
"The defendant is entitled to the value of that ice at the time
it was taken, and where it was situated, for any lawful use to
which it could be put. If it was valuable to use there, he is
entitled to its value for use. If it was valuable for sale, he is
entitled to its value for sale. If it was valuable to send to
market, he is entitled to whatever value it bore at the time and
place for any market, not what it might bring at another market --
I don't mean that -- but its value at Boothbay, on August 13, 1870,
for any purpose to which it might be put."
On this the Supreme Judicial Court remarked (p. 461): "To these
instructions there can be no reasonable objections urged. The value
at the time and place of taking is the rule."
The contention of the defendants that on the recovery of the
judgment in replevin, the plaintiff in replevin was only bound to
restore the goods or to pay their money value at that time, and
that the liability for the breach of the replevin bond would be
discharged if the plaintiff in replevin paid such sum of money as
would enable the defendant then to go into the market and buy goods
of like description and value, is not sound. Ice is a peculiar
article of property. The ice in question was taken in August, 1870,
at a time of year when, as we all know, ice has a larger value than
at some other times of the year. The defendant in the replevin suit
was entitled to the value of that ice as of that time, and of the
place where it was taken, as stated in the case in 68 Me., for any
lawful use to which it could be put. It was also said by the court
in that case (p. 462):
"As the taking by the plaintiffs was wrongful, the defendant is
entitled to full indemnity. The measure of damages is the actual
value of the property to the plaintiffs as an article of
merchandise or sale."
Under these views, the defendant would not necessarily be made
whole by
Page 125 U. S. 444
a sum of money sufficient to enable him to purchase in the
market a like quantity of ice eight years after it was taken.
It is also contended for the defendants in this suit that the
circuit court erred in rejecting the evidence offered by them to
show that the value of the ice replevied was less than $10,000 at
whatever time such value was to be assessed, and in ruling that the
plaintiff was not precluded from showing that the value of the
goods replevied was more than the $15,000 named in the replevin
writ and the bond.
We do not think the court erred in rejecting the evidence so
offered by the defendants. The writ of replevin stated that the
quantity of ice was "about thirty-eight hundred tons, . . . of the
value of fifteen thousand dollars." The bond of the 12th of August,
1870, recited that the action was for "about thirty-eight hundred
tons of ice, . . . of the value of fifteen thousand dollars." The
first return of the sheriff, dated August 13, 1870, specified the
quantity of ice as "about twenty-five hundred tons." The amended
return specified the quantity as being 2,331 tons and 1,851 pounds.
The jury, in the trial of the replevin suit, found that the value
of the ice replevied where it was situated at the time it was taken
was $20,069.33. The condition of the bond must be held to mean that
the quantity of goods replevied was to be restored, leaving it to
be ascertained what that quantity was. It must be assumed, in the
absence of evidence to the contrary, that the quantity taken by the
jury as the basis of the value they found was the quantity named in
the amended return of the sheriff. The sureties in the bond were,
by its terms, so connected with the replevin suit that they are
bound by the adjudications necessary made in it. The jury could not
have found any basis for the calculation of the interest as damages
unless they had found, as they did, the value of the ice where it
was situated at the time it was taken. The sureties are bound by
that finding.
There was therefore no error in excluding the evidence so
offered by the defendants or in permitting the plaintiff to show,
as he did conclusively by the record in the replevin suit, that the
value of the ice where it was situated at the
Page 125 U. S. 445
time it was taken was greater than the $15,000 named in the writ
of replevin and the bond.
This is in accordance with the decisions in the Supreme Judicial
Court of Maine. In
Thomas v. Spofford, 46 Me. 408, the
court below had ruled that the plaintiff in the suit on the
replevin bond was estopped from showing that the property was of
greater value than that stated in the writ of restitution, which
was the value stated in the writ of replevin, the bond being for
double that value, but the Supreme Judicial Court said:
"The defendant in replevin is not conclude by the value of the
property named in the bond or the writ. If he was to be thus
estopped from denying that value, he would be at the mercy of his
opponent, whose interest it always is to fix as low a value as
possible. . . . It seems clear on the authorities and fair reason
that the defendant in replevin is not concluded or estopped by the
sum named in the bond as the actual value."
To the same effect is
Miller v. Moses, 56 Me. 128, 141.
In
Tuck v. Moses, 58 Me. 461, 477, it is held that the
plaintiff in replevin is bound by the value which he puts upon the
property in his writ, but that with the defendant in replevin it is
otherwise, and, as he has no hand in fixing the value in the writ,
he is not estopped from showing it to be greater than is there
stated.
The defendants submitted to the court a prayer for a ruling that
the statement of the sheriff in his return of the quantity of ice
actually taken by him on the writ of replevin was competent and
conclusive evidence of that quantity in the trial of the suit on
the replevin bond. The bill of exceptions states that the court
overruled such prayer, and ruled that neither one of the returns
was conclusive evidence of the quantity taken by the officer upon
the replevin writs and that the defendants excepted to such
rulings. No practical question arise upon this exception, for it
does not appear by the bill of exceptions that either side offered
any evidence for the purpose of showing that the quantity of ice
replevied varied from the quantity stated in the amended return.
The evidence offered to be given by the defendants to prove that
the value of the ice replevied was less than $10,000 at whatever
time such value
Page 125 U. S. 446
was to be assessed, was not an offer to prove that the quantity
of ice replevied varied from that stated in the amended return, and
the plaintiff, neither offering nor giving any evidence that such
quantity varied from that stated in the amended return, relied upon
the finding of the jury in the replevin suit as to the value of the
ice replevied.
The defendants complain of the admission in evidence of the
answer of the jury in the replevin suit as to the value of the ice
replevied where it was situated at the time it was taken, and also
of the ruling of the court that such answer was evidence in this
suit, and conclusive against the defendants, of the value of the
ice, in determining the amount which the plaintiff is entitled to
recover in this suit. It is contended for the defendants that it
was discretionary in the jury, in the trial of the replevin suit,
to answer the question referred to, and that it was no part of the
legal issue in that trial. But as has been shown, the rule adopted
in that trial for finding the damages was to assess the interest on
what was found to have been the value of the ice at the time and
place of taking, and that such value was an indispensable element
in arriving at a verdict. Such value was found by the jury in
finding the verdict, and, a judgment having been entered thereon,
the fact so found is conclusive not only upon the parties to the
replevin suit, but upon those who became sureties by the bond to
abide its event. The sureties became bound by the result of the
replevin suit by virtue of their agreement contained in the
bond.
In
Drummond v. Executors of
Prestman, 12 Wheat. 515, the record of a judgment
confessed by a principal to a creditor for a debt due was held to
be admissible in evidence to charge a surety who had guaranteed the
debt to the creditor. In
Stovall v.
Banks, 10 Wall. 583, it was held that the sureties
in the bond of an administrator were bound by a decree against the
administrator, made in a suit to which they were not parties,
finding assets in his hands which he had not paid over.
The sureties in the replevin bond were represented in the
replevin suit by the plaintiff therein, and were identified with it
in interest, and claimed in privity with it, so as to be
concluded
Page 125 U. S. 447
by the proceedings in that suit. 1 Greenl.Ev. § 523. The
question of the value of the ice at the time it was taken in
replevin was essential to the finding of the verdict in the
replevin suit, and in such case it is not necessary to the
conclusiveness of the former judgment that there should have been a
formal issue in the prior suit as to such question. 1 Greenl.Ev. §
534.
On the whole case, we are of opinion that there is no error in
the record, and that the judgment must be
Affirmed.