Bradley v. Reynolds

Torrance, J. This is an action against the defendant as surety upon a replevin bond. The complaint is in the ordinary form setting out in substance the following facts. On the first day of August, 1889, the plaintiff, as deputy sheriff, attached, as the property of William M. and Jesse Reynolds, the property described in the complaint, in a suit brought by one Swift against them. On the next day, John J. and Jane A. Murray, claiming to be the owners of the attached property, brought an action of replevin against the *278 plaintiff, and caused the attached property to be delivered to them. The bond sued upon was given in that suit. .On the 7th of May, 1890, Swift recovered judgment in his suit for a sum much greater than the value of the attached property. On the 15th of October, 1890, judgment was rendered in the replevin suit in favor of the present, plaintiff, as defendant therein, for the return of the property replevied, one dollar damages, and coáts. On the 22d of October, 1890, execution was taken out .on the Swift judgment, demand on the execution was in effect made, but it was not paid, and no property of the judgment debtors could be found, although search was duly made therefor. After-wards demand was made with the execution upon the defendant for the property replevied, but he refused and neglected to turn out tlm same, and the execution was returned unsatisfied. None of the replevied property has ever been returned to any one in satisfaction of the Swift judgment. To this complaint the defendant, by way of answer, filed four special defenses. The first defense simply denied that search had been made upon the Swift execution for property of the judgment debtors, and that none could be found on which to levy, as alleged in the complaint, and substantially admitted all the other allegations. To this defense the plaintiff demurred, on the ground that the allegation in question was mere surplusage. The court sustained the demurrer, and this action of the court is assigned for error. “Surplusage is that which is impertinent or entirely superfluous, as not being necessary either to the substance or the form of the pleading.” Gould’s Pleading, chap. 8, § 11. The allegation in question was “impertinent and entirely superfluous,” inasmuch as if it had been stricken out a good cause of action would have remained. Persse v. Watrous, 30 Conn., 148. It was not, as claimed by the defendant, an “immaterial averment,” in the technical sense, that is, “a statement of unnecessary particulars, in connection with and as descriptive of what is material.” Gould’s Pleading, chap. 3, § 185. It was mere surplusage, and this in general *279 does not vitiate. The court did not err in sustaining the demurrer to the first defense. The material part of the second defense reads as follows: —“If the said nominal plaintiff, as a defendant in the replevin suit of John J. Murray and Jane A. Murray against himself, as deputy sheriff, recovered judgment as alleged, on the 15th day of October, 1890, said judgment was obtained by collusion between the said nominal plaintiff, Bradley, and the real plaintiff, Swift, on the one hand, and the said John J. and Jane A. Murray, plaintiffs in the replevin suit, and without notice to the defendant in this suit, and for the purpose of obtaining a judgment against the defendant in this suit. The actual title to the replevied property on the 2d day of August, 1889, and from that time until on and after the 15th day of October, 1890, was in the said John J. Murray and Jane A. Murray; and the judgment so obtained by agreement and collusion between the said nominal and real plaintiffs in this suit and the plaintiffs in the replevin suit was a fraud upon the defendant in this suit; and said judgment was obtained solely for the purpose of compelling the defendant in this suit to pay a large sum of money to the said Swift.” The plaintiff demurred to this defense and the court sustained the demurrer, and this is assigned for error. The question is, whether the facts alleged and admitted by the demurrer show that the judgment in the replevin suit was obtained by fraud on the part of Swift, or Bradley, or both. It is not enough that the conduct of the Murrays in suffering judgment in the replevin suit was a fraud upon the defendant, unless it also appears that the plaintiff or Swift or both participated in some way in that fraud. Nor is it enough merely to allege that the judgment in question was obtained by fraud and collusion on the part of the plaintiff and Swift with the Murrays. The facts stated and set forth must be such as to constitute in law fraud and collusion on the part of the plaintiff and Swift. Gates v. Steele, 58 Conn., 316. Now if all the facts and circumstances alleged in the *280 second defense are as alleged, still it does not follow that the plaintiff or Swift or both committed any fraud upon the defendant, unless they knew at the time that the replevied property belonged to the Murrays. If the defense in question had alleged that the plaintiff and Swift, with knowledge that the property really belonged to the Murrays, had by collusion with them obtained this judgment, the case would have been quite different. But no such allegation is anywhere made. If they did not know this fact at that time, then all that it is charged that they did they had a perfect right to do. Swift and the plaintiff had attached the property as the property of William M. and Jesse Reynolds. The replevin suit, so far as we know from the conduct of the parties, was defended in the belief that the property did not belong to the Murrays. Under such circumstances the plaintiff and Swift had a right, so long as they were acting in good faith, to take a judgment against the Murrays by nonsuit or otherwise, in a suit to which they believed the Murrays had no good defense; and they had a right to do this as a part of a process which would end in subjecting the defendant to liability on his bond, and that too without notice to him. Without this element of knowledge on the part of Swift and Bradley, we are unable to see how, in doing what it is charged they did, they were guilty of any fraud or collusion of any kind towards any person. If the plaintiff and Swift were guilty of no fraud in obtaining the- judgment, then the mere fact, if it be a fact, that the Murrays were guilty of fraud or other wrongful conduct against the defendant in failing to prosecute the suit, would be of no avail in this suit against innocent' parties. Martin v. Campbell, 120 Mass., 126; State ex rel. Cartwright v. Holmes, 69 Ind., 577. So far as the defense now in question is concerned, the Murrays, as to the plaintiff and Swift, appear to be mere third parties and strangers, whose frauds against the defendant of the kind in question, if they committed any, would not affect innocent parties. Bigelow’s Law of Fraud, 252, *281 §12. The demurrer to the second defense was properly-sustained. The third defense alleges in substance that after Swift recovered judgment in May, 1890, he filed a judgment lien upon land of the judgment debtors, of value more than sufficient to satisfy the judgment, and that in November, 1890, he brought suit to foreclose the lien, which suit is still pending. To this defense the plaintiff demurred and the demurrer was sustained, and this is assigned for error. The claim of the defendant on this point, as set forth in his brief, seems to be that the filing of a judgment lien, when the lien secures more than enough land to satisfy the judgment, and a suit is pending to foreclose it, is equivalent to the actual satisfaction of the judgment. The mere statement of the claim shows its unsoundness. There is no claim that the judgment was actually satisfied or paid. The facts show that Swift was in court in the foreclosure suit, seeking satisfaction, not that he had already obtained it. Until he obtained satisfaction he had the right to use all the means and methods to obtain it which the law gave him. The judgment debtors could not be heard to complain of this, and the defendant is not in any better plight as to this matter. The demurrer was properly sustained. These same matters were set up in the fourth defense “as a matter of equitable defense, and as a reason why no judgment should be rendered against the defendant in this case at this time.” This was also demurred to, and for the reasons already given in disposing of the third defense, we think the court below did not err in sustaining the demurrer. After filing these four defenses the defendant filed a supplemental answer, which set up in substance that at all times since the date of the judgment in the replevin suit the defendant had made diligent efforts to obtain possession of the replevied property, but until the 21st day of April, 1891, had been unable to find it; that on that day he obtained possession thereof, (except some of the lap robes,) and tendered the same to the plaintiff, who refused to re *282 ceive it, and the same is now subject to the order of the plaintiff or of Swift; that said property had not deteriorated but had increased in value since the date of the judgment in the replevin suit; and that at the same time, “ to cover all damages to which the plaintiff would be entitled on account of the delay in returning the goods to him, the plaintiff, or on account of any deficiency, if any, in the number of lap robes, for which the bond was given,” the defendant “made a tender to the plaintiff in this suit of the sum of twenty-five dollars,” which the plaintiff refused to accept. The supplemental answer ended as follows: — “ Wherefore the defendant s'ays that no judgment should be passed in this ease against him, except either for costs or for nominal damages and costs.” This supplemental answer was also demurred to, the demurrer was sustained, and this is assigned for error. The bond given in this .suit does not appear upon the record, but we assume that it was in the ordinary form prescribed by statute. One of the obligations of such a bond is that the plaintiff in the replevin suit shall return the replevied property to the defendant therein, if the plaintiff fails to establish his right to the possession of the same in that suit. No time is mentioned in such bonds within which, after judgment, the property must be returned to the defendant, but there can be no doubt that if, as was true in the case at bar, the property is not returned within a reasonable time after demand therefor, this constitutes a breach of the obligation to return. The supplemental answer, without alleging any facts amounting to a legal excuse for the failure to return the property at the proper time, sets up a tender of part of the property long after ‘the breach of the obligation, and after suit brought thereon. This is nota plea in bar of the action in whole or in part, nor is it filed as such, nor does it necessarily follow, if the facts set up be admitted, that the judgment must be rendered as claimed in the answer. There is no allegation in the plea that the sum tendered “ to cover all damages to which the plaintiff would be en *283 titled on account of the delay in returning the goods to him, the plaintiff, or on account of any deficiency, if any, in the number of lap robes for which the bond was given,” was in fact sufficient for that purpose, and consequently the fact of such sufficiency is not admitted by the demurrer. It does not then at all follow that an admission of the facts set up is an admission that judgment must be only for costs, or for costs and nominal damages, as claimed. But aside from this, upon the facts set up in the defense in question w'e think the plaintiff was not bound to accept the property tendered at so late a day. It was optional with him to do so, for the provision for a return was made for his benefit, but he was not obliged to do so. It was the right and duty of the defendant to return the property at a proper time. After he has refused, and the breach of his obligation is complete, and the plaintiff has made his election to sue for damages for the breach, the defendant cannot, under such a state of facts as is here set up, compel the plaintiff to take the property instead of damages for it. But the plaintiff says that the facts set up in the supplemental answer should be considered in mitigation of damages, and that “the court below, by sustaining the demurrer to the supplemental answer, cut off the defendant from even offering the evidence in mitigation of damages.” Now even if it were true that the facts set up in the supplemental answer were of such a nature that they might have been shown in mitigation of damages, a point which it is not necessary here to decide, this claim is without foundation. Facts and circumstances in mere mitigation of damages are seldom, if ever, pleaded, and from the record we know that after all the demurrers were overruled there was a hearing in damages, wherein we must assume, for he makes no complaint to the contrary, that the defendant had opportunity, if he had seen fit to use it, to offer legal evidence in mitigation of damages. In sustaining the demurrer to the supplemental answer therefore, the court below committed no error. After these demurrers were overruled, the ease was de *284 faulted for want of an answer, and there was a hearing in damages. Upon that hearing the defendant offered no evidence “showing or tending to show that any of the allegations of the complaint were untrue.” The court finds as follows: — “The property described in the complaint remained in Guilford till October, 1889, when it was removed from the state, and its whereabouts thereafter remained unknown until April 22d, 1891, when the horses, carriages, and five of the robes, were returned to Guilford. The harness and remaining robes , have never reappeared. * * *' No witness was offered by either party who had any knowledge of the property during this interval, between said removal and said return, or of the harnesses and remaining robes since said October, 1889. During the time from the replevy, August 2d, 1889, to October, 1889, the condition and value of said property remained unchanged. In April, 1891, when the horses, carriage and five robes were returned, the horses were in bad condition from neglect and want of care, and much, although not permanently, depreciated in value, and the carriage, which was nearly new when replevied, was considerably worn and its value much reduced. The depreciation was wholly due to the neglect and improper care to which the horses had been subjected, and the use to which the carriage had been put, excepting that the value of the horses would have become slightly reduced by their increase in age.” The court, in assessing the damages, found the value of the property at the time it was replevied, and to this added the damages and costs in the replevin suit, and interest from the date of that judgment to the date of. the judgment in the present suit. The defendant claimed, and asked the court to hold, that the damages should be assessed on the basis of the value of the replevied property at. the time of the judgment in the replevin suit in October, 1890, and not upon its value at the time it was replevied; or else upon the value of such property at the time of the trial in the present suit, with damages for detention gince the judgment in the replevin suit added. The court, as we have seen, *285 overruled these claims, and assessed damages upon the basis of the value of the property at the time it was replevied. The remaining errors assigned are all based upon this ruling of the court. If that ruling was correct, or, if incorrect, it did. the defendant no harm, then the points covered by those assignments are not well taken. Even if the ruling was incorrect we think it did the defendant no harm. The court below found, as we have seen, that the depreciation in the value of the property between the time it was replevied and April, 1891, when it was tendered in return, was wholly due to the neglect and improper use and care to which it had been put and subjected, except as to a slight reduction of value in the horses by their increase in age. In substance and effect this is a finding that the value of the property, so far as the defendant is concerned, was the same in April, 1891, as it was in August, 1889; for its depreciation in value at the latter date is found to be wholly due to the wrongful conduct of those who obtained the possession of it by means of the writ of replevin. But depreciation arising from such a cause cannot avail the Murrays or their bondsmen. As to them, the property in April, 1891, must be held in effect not to have depreciated at all, for in law they could not show such depreciation so as to affect the damages. The court found in effect that if the property had remained in the custody of the officer, its value would have been substantially the same in April, 1891, as it was in August, 1889. If this be so, the court of course, in effect, found also that the property was of the same value in October, 1890, as it was in August, 1889. If then the court based its estimate of damages upon the value of the property in August, 1889, rather than in October, 1890, or in April, 1891, what difference does it make to the defendant, or how does it legalharm him, if the finding at either of the other dates must have been substantially the same ? In this view of the case, even if we assume that the court erred, the error cannot have injuriously affected the defendant, so as to entitle him to have the judgment reversed or a new trial granted. *286 But aside from this, we think the ruling was correct under the circumstances of this case. Swift had recovered a judgment for more than treble the value of the attached property. That property in August, 1889, was in the custody of an officer, whose duty it was to hold and keep it, without depreciation in value from any fault of his, to satisfy the judgment which Swift obtained. If the property was of a perishable nature, or the' custody of it was difficult or expensive, it might have been converted into money, which would have been held to respond to the judgment. In these circumstances and by means of the bond given by the defendant, that property was placed in the custody and possession of parties who had no claim or right of any kind whatever to it. The defendant in effect bound himself at least to return the property without depreciation in value arising solely from the use or abuse or wrongful conduct of the Murrays or others under them, and to pay all damages the plaintiff might sustain “ by the replevying thereof,” if, as happened, the Murrays failed to establish in the replevin suit their right to the possession of the property. If the defendant at the proper time had returned the property depreciated in value from such use or wrongful conduct, there can be no doubt that the plaintiff could recover damages for such depreciation in this action. 2 Sutherland on Damages, 47. The obligation is in effect one of indemnity. The plaintiff is to be placed, so far as money recovered as damages can do so, in the position he would have occupied if the property had not been replevied. If the defendant had returned the property at the proper time, undepreciated in value from the causes aforesaid, the plaintiff would have had the benefit of the full value of the property as it was when taken from him. To this benefit he was clearly entitled under the circumstances, by the defendant’s voluntary obligation. “ The general rule of law would give in such a case, as an indemnity, the value of the property at the time it was taken.” 2 Sutherland on Damages, 47. It makes no difference that the plaintiff was merely an *287 attaching officer. As against the Murrays, whose possession, though obtained under the forms of the law, must now be held to have been in fact wrongful from the beginning, and against their bondsman, the plaintiff was entitled to recover full damages. White v. Webb, 15 Conn., 301. 2 Sutherland on Damages, 55. The court below, upon the point in question, ruled correctly. There is no error in the judgment appealed from. In this opinion the other judges concurred.