Fitzhugh v. . Wiman

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 561 In regard to the main question presented in this case upon the merits, which is whether the plaintiffs had such an interest in the goods as entitled them to maintain the action, I see no reason to doubt the accuracy of the conclusion arrived at by the supreme court. A contract to transport the goods from Oswego having been made by the plaintiffs *Page 562 at Chicago, and advances having been made by them upon the faith of such contract, the delivery of the goods to a common carrier at Chicago, under a special consignment to the plaintiffs, was virtually a delivery to them: the master of the propeller in this case is to be regarded as the agent of the plaintiffs to receive the goods for them at Chicago and transport and deliver them at Oswego. But aside from this, the consignee of property is in law presumed to be the owner, and if they are lost in transitu, or diverted from their destination, suit may be brought either in his name or in that of the real owner. In this case the plaintiff had not only the rights of a consignee, but also a special property in the goods to the extent of the advances made and the profits to be realized upon them. But it is insisted on the part of the appellant that if the plaintiffs were entitled to recover at all they were not entitled to the judgment which they obtained; that the form of the judgment is erroneous and not warranted by law in such a case. This depends upon the construction to be given to the provisions of the Code, by which the proceedings in actions to recover the possession of personal property are regulated. Section 277 prescribes the form of judgment to be taken in this class of actions. The first branch of that section provides as follows: "In an action to recover the possession of personal property, judgment for the plaintiff may be for the possession, or for the recovery of possession, or the value thereof in case a deliverycannot be had, and damages for the detention." It is clear that a plaintiff in an action of this kind cannot take a judgment not warranted by this section. It becomes necessary, therefore, to put a construction upon it. The point to be determined is whether the provision in question authorizes a plaintiff to whom the property has not been delivered, and when it appears upon the trial that the property is beyond his reach, to take judgment absolutely for its value, or whether in such cases, if he succeeds, the *Page 563 judgment should be in the alternative for the recovery of the property, or of its value as assessed by the jury in case a delivery cannot be had. If the clause upon which this depends were to be interpreted with reference alone to the import of the terms used, and the grammatical construction of the sentence, there might be some difficulty in deciding this question. There are, however, other considerations, which leave little if any doubt as to what was intended. It is clear that it cannot be at the option of the plaintiff to take judgment for the value of the property when it has already been restored to him, because the statute gives this right only when a delivery cannot be had. How, then, is the fact that a return of the property cannot be obtained to be made to appear? No evidence on this subject can be offered to the jury, because it is wholly foreign to any issue upon which they are to pass. The fact can only be shown therefore by proof offered to the court before judgment, or by the action of the sheriff upon the execution. If the former course was intended, what is to become of that class of cases in which the property is eloigned or removed after judgment? These cases, as well as those where the property had been without the knowledge of the plaintiff put beyond the reach of the execution before judgment, would be left wholly unprovided for. But the provision of the Code in respect to the execution in such cases would seem to settle the question as to the form of the judgment. Section 289 prescribes the form of the various executions which may be issued. Subdivision 4 of this section provides as follows: "If it (the execution) be for the delivery of the possession of real or personal property, it shall require the officers to deliver the possession of the same, particularly describing it, to the party entitled thereto, and may at the same time require the officers to satisfy any costs, damages, or rents and profits recovered by the same judgment, out of the personal property of the party against whom it was rendered, and the value of the *Page 564 property for which the judgment was recovered to be specified therein, if a delivery thereof cannot be had," c. This provision for an execution in the alternative, making the right to levy and collect the value of the property depend upon the question whether the property itself can be found and delivered, shows conclusively that it was intended that the judgment should be in the alternative. An execution in this form upon an absolute judgment for the value of the property could never have been authorized. A comparison of § 277 of the Code with the provisions of the Revised Statutes, for which it is substituted, leads to the same conclusion. Section 49 of the statute concerning "the action of replevin" (2 R.S., 530), provides that "If the goods and chattels specfied in the declaration shall not have been replevied and delivered to the plaintiff, such plaintiff, in case he shall recover judgment upon the whole record, shall be entitled, in addition to his judgment for damages and costs, toa further judgment that such goods and chattels be replevied and delivered to him without delay; or, in default thereof, that such plaintiff do recover from the defendant the value of such goods and chattels, as the same shall have been assessed by the jury on the trial, or upon a writ of inquiry." The language of this section is too explicit to admit of any doubt whatever; the plaintiff is to have judgment for a delivery of the property, or in default thereof that he recover the value, c.; and the execution provided for in the next section followed strictly the terms of the judgment, commanding the sheriff to deliver the property if found, and if it could not be found, then to levy the value, c. Now any one who compares §§ 277 and 289 of the Code with these two sections of the Revised Statutes, must, I think, be satisfied that they were intended to receive in the particular under consideration the same construction. They provide for the same cases, and although the language varies, the general tenor of the provision is in all respects the same. *Page 565 I cannot resist the conclusion, therefore, that in this species of action, judgment for the value of the property can only be taken in connection with a judgment for the recovery of the possession, as an alternative depending upon the ability of the sheriff to find and deliver the property itself upon the execution. If the judgment had been in this respect in proper form, it could not have been objected by the defendant that the recovery was limited to the amount of the advances, together with the profits which would have accrued upon the transportation of the property. The plaintiffs were not the general owners, but had a special property only, and the amount recovered seems to be precisely that to which the plaintiffs would have been entitled as the value of their special and limited interest in the goods; and as it appears in the case that the goods themselves have been transported and delivered to the ultimate consignees, the objection to the judgment is reduced to one of form merely; as the value of the property should under the circumstances have been assessed at the same sum which the plaintiffs have recovered under the name of damages. There is no reason therefore, as the merits are wholly with the plaintiffs, for sending the case back for a new trial; but the judgment should be modified and made to conform to the provisions of the Code, by changing it into a judgment in the alternative for a return of the property, or for its value in case a return cannot be had; the amount assessed as damages for the plaintiffs' advances and profits to be taken as such value. No costs should be allowed to either party in this court, but the plaintiffs' costs in the supreme court should be included in the judgment.