Tuck v. Moses

Danforth, J. This is an action upon a replevin bond in which the defendants have been defaulted. The question presented is the amount of damages which the plaintiff is entitled to recover. This, however, involves several preliminary matters which must first be settled. 1. The extent of the defendants’ liability under their contract. The bond is not a statute bond, and on that ground the writ, by which the action was commenced in which it was given, was abated. It has, however, before this been decided to be valid at common law. Tuck v. Moses, 54 Maine, 115. As a common-law contract it must receive such a construction as will, within legal principles, most effectually accomplish the intention of the parties. The bond was given for the purpose of authorizing an action of replevin. It refers to and describes the writ, and the language of the condition is, that the plaintiffs “ shall prosecute — 473 — said replevin to final judgment, and pay sucli damages and costs as the said A. T. Tuck shall recover against them, and shall 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 in said suit.” This condition is in the usual form of replevin bonds, and such as is prescribed by the statute. Further than this there is no provision in the statute in relation to the bond, except as to the amount of the penalty, and none whatever regulating the liabilities of the obligors under it. The replevin suit and the liabilities of the plaintiff' in case he fails to sustain his action are, in a great measure, regulated by statute. The suit is tried without regard to the bond, and it is only when the plaintiff' fails and final judgment is rendered against him, and on neglect to comply with that judgment, that the defendant has any occasion to resort to his bond. The statute has attached certain incidents to that judgment, such as damages for the taking of the property, which may or may not be incorporated into it. That the language of this bond is sufficient to require a compliance with the judgment, there can be no doubt. As the judgment and its incidents cannot be well separated, it would seem to be sufficient to require a compliance with all those liabilities which necessarily follow that judgment. Such has been the judicial construction of language similar to this, independent of any statute provision. Smith v. Dillingham, 33 Maine, 384. Both from principle and authority we must hold the language of this bond as sufficiently broad to hold the obligors liable to fulfill the judgment in the replevin suit, and all the obligations legally resulting therefrom. In other words, the language of the condition being the same as that in a statute bond, it must receive the same construction, for both are construed by the principles of the common law and not by statute. 2. Of the final judgment in the replevin suit. What is its force and effect ? The writ in the replevin suit was abated, and the defendant had — 474 — judgment for a return of the property and for his costs. It is, however, contended that this judgment, so far as it relates to the return, is not conclusive between the parties. But if it is a judgment, as between the parties, it must be conclusive upon all questions settled by it, as long as it stands. This is the universal rule to which it is believed there is no exception. Granger v. Clark, 22 Maine, 128; Walker v. Chase, 53 Maine, 258. That this was a judgment of the court, regularly rendered, there can be no doubt. It is by statute the final judgment in a replevin suit. It involves all the characteristics of a judgment. It is made up as the result of a hearing of the parties upon the production of legal and competent testimony. It involves an inquiry into and an adjudication upon the merits of the question at issue, and will be rendered only as law and equity shall require. It does not, as a matter of course, follow the previous result of the suit. City of Bath v. Miller, 53 Maine, 315, 316; Wheeler v. Train, 4 Pick. 168; Simpson v. McFarland, 18 Pick. 427; Whitwell v. Wells, 24 Pick. 33 ; Ingraham v. Martin, 15 Maine, 373. In Bath v. Miller, above cited, such a judgment was held and treated as conclusive between the parties. The quantity of the wood replevied was a question in controversy. The writ and return of the officer thereon are a part of the record. The writ states distinctly the property to be replevied; the return, unlike that in Miller v. Moses, 56 Maine, 128, states 'just as distinctly the property replevied; and the judgment, differing in the same respect from that in Miller v. Moses, sets out with similar precision the. exact property to be returned. But it is said the court had no jurisdiction, because the writ was ■abated at one term and the judgment was rendered at another, when there was no writ or bond in court. The record shows the facts to be as stated, but the consequence claimed does not follow. * The action is not disposed of until the question of return is acted upon. That is the final judgment in the case, and until that is rendered both parties are in court with a right to be heard, and in this — 475 — case it appears from the record that the action was continued for a hearing upon the motion for a return. It is further said, that the present defendants had no legal right to offer any testimony on that hearing, the writ having been previously abated; and the case of Greeley v. Currier, 39 Maine, 516, is relied upon. Whether this case is or is not good law we have no occasion at this time to decide; for, if.it was not competent for the defendants to introduce other testimony on the hearing as to what judgment should be rendered, it certainly follows that such testimony cannot now be introduced to vary or control that judgment after it is rendered. As to the amended return of the officer, if that is to be received as testimony, it would not follow that the judgment is wrong. It does not show that the whole amount of wood claimed in the writ was not replevied. Whether one return is true or the other, the judgment still remains the same. But the amendment comes too late to affect the judgment. The return at most is but evidence, upon which the judgment is founded, and after it has once been rendered, an amendment of the return can no more be received to change or control it, than can other evidence. Whether i nniy or may not be received as testimony in the proper process for reversing the judgment, is a question not now before us. But independent of any legal principles involved in this judgment, the defendants in their bond have virtually agreed that it shall be binding upon them. They have agreed to pay such damages and costs as shall be recovered against them, and shall return the property if “ such shall be the final judgment in said suit.” Such has been the “ final judgment in said suit,” and the plaintiff now asks, that they shall simply abide by what is written in the bond. Of that they cannot complain if they are held. In the replevin suit, the then plaintiffs, now defendants, ordered certain specific wood to be replevied; by their officer they say that such wood was replevied and they received it. They have failed to make good their title, and after an opportunity for a full hearing, final judgment has been rendered that the same wood be returned; and this, by their bond, they have agreed to do. — 476 — We know of no principle of law or equity that will now permit them to contradict, vary, or control the effect of these acts, this judgment, and this contract. This brings us to the question of damages. What shall the amount be ? This question, so far as it is not settled by the judgment, is undoubtedly open to the defendants. That has settled the quantity of wood to be returned, but not its value, nor the extent of the plaintiff’s interest in it. These questions are open and have been heard by the master appointed by the court, upon such testimony as the parties chose to offer. The judgment for the return fixes the extent of the plaintiff’s interest in the wood at the date of the replevin writ. If the defendants could have shown by parol testimony or otherwise, that the interest of the plaintiff, in whole or in part, had, since that time, ceased to exist; or if for any reason the property, or any part of the proceeds, on being returned to him would at once have reverted to the defendants, it would have been competent for them to have done so, notwithstanding the order to return, in mitigation of damages. Such is the reasonable doctrine, for it is simply a question of actual damage to the plaintiff or those he represented. It could be no damage to him to withhold that which he had no right to receive, or having received he would be under legal obligation to return. So far the authorities go in permitting a modification of the language of the judgment, but no further. Davis v. Harding, 3 Allen, 302; Bartlett v. Kidder, 14 Gray, 449, and cases cited. But the defendants have failed to produce any such testimony. On the other hand the report of the master shows that the plaintiffs’s interest is that of an attaching officer; that judgments have been obtained in the suits in which the wood was attached, and executions issued thereon which are still unsatisfied; that the full value of the wood will not be sufficient to satisfy them, and that the proper steps were taken to keep the attachment good. The plaintiff, then, is entitled to receive, as one item of damages, the full value of thfe wood. But at what time is that value to be — 477 — fixed ? The master finds the value at the time it should be returned under the judgment, as much larger than the value as fixed in the writ at the time it was replevied. That the plaintiff in replevin is bound by the value which he puts upon the property in his writ, may now be considered as well-settled law. So that in case of depreciation in value by use, decay, fall in the market price, or otherwise, the loss is his and he cannot avail himself of it in mitigation of damages. Howe v. Handley, 28 Maine, 251; Gordon v. Jenney, 16 Mass. 469; Huggeford v. Ford, 11 Pick. 228; Parker v. Simonds, 8 Met. 211. But with the defendant in replevin it is otherwise. 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. Thomas v. Spofford, 46 Maine, 408. In the case at bar the increase in the value of the property must have arisen from an increase in its market price. As the property was wrongfully taken by the then plaintiffs, there would seem to be no reason why they should be permitted to have the advantage of that which would justly have accrued to the then defendant if the property had remained in his possession as the law required. Besides, the defendants’ contract requires them to return the property “ if such shall be the final judgment ” of the court. That contract was broken when, and only when, the judgment was rendered. If they do not return the property, the damage to the plaintiff would evidently be its fair value at that time. This would be analogous to the law of damages growing out of a breach of ordinary contracts for the delivery of property. This principle was adopted in the case of Swift v. Barnes, 16 Pick. 194, and was also recognized as sound law in similar cases, in Parker v. Simonds, 8 Met. 211, though this latter case was excepted from its operation on the ground that the property there had fallen in value and not risen. Therefore, the other principle was applied, viz., that the plaintiff in replevin was bound by his own valuation. In Thomas v. Spofford, before cited, Kent, Justice, in giving the opinion of the court, on page 410, says, “ It seems clear on the authorities — 478 — and from reason, that the defendant in replevin is not concluded or estopped by the sum named in the bond as the actual value. And the insertion of the same in the execution, by the inadvertence of the clerk, cannot, in our judgment, estop the party from proving the actual value at the time of the taking, or the time of the demand.” It follows that the defendants in this case are liable for the value of the property at the time of the breach of their contract, Nov. 18, 1865, found by the master to be ($4,695) four thousand six hundred and ninety-five dollars. To this is to be added a sum equal to legal interest from that time to such time as judgment shall be entered up in this case. Also, the amount of the costs in the replevin suit, viz., $15.68, with interest for the same time. As the plaintiff holds the wood as an attaching officer, and the service of the execution was delayed by the replevin, the statute provides a penalty of not less than twelve per cent on the value of the goods attached while the execution is so delayed. This is one of the legal incidents of the judgment in the replevin suit, and, as it was not recovered in that suit, it may be recovered in this action upon the bond. As there is no proof that the wood was of any greater value than that alleged in the writ, until the judgment in the replevin, and as in the contemplation of the statute the service of the execution is not delayed by the replevin beyond the date of the judgment for a return in that suit, this sum is to be ascertained by reckoning the twelve per cent upon the value of the wood as stated in the replevin writ from the time of the judgment in the suit in which it was attached to the date of the judgment for a return in the replevin suit. In brief, the damages are to be made up thus, — 1st, the value of the wood at the date of the judgment in the replevin suit, viz., $4,695, with interest at six per cent on that sum, from the date of that judgment, Nov. 18, 1865, to the date of the judgment in this action; 2d, the costs in the replevin suit, $15.68, with interest for the same time; and 3d, a sum equal to twelve per cent on the value of the wood at the time it was replevied, $2,820, from the date of the judgment in the suit — 479 — in which it was attached, viz., April 22, 1863, to the date of the judgment in the replevin suit, viz., Nov. 18, 1865. These several sums added together make an aggregate of seven thousand one hundred and forty-seven dollars and forty-two cents ($7,147.42), and judgment must bo rendered for that sum. Appleton, C. J.; Walton, Barrows, and Dickerson, JJ., concurred.