Maguire v. Pan-American Amusement Co.

Braley, J. The defendants were not liable for the penal sum, unless a breach of the replevin bond declared on was proved; and when the plaintiff had introduced evidence, that at the trial of the action he recovered judgment for damages and for a return of the property, and that the execution which issued thereon had been returned in no part satisfied, the jury, without further testimony, would have been warranted in finding that the damages had not been satisfied or the property given up, and consequently the condition had been broken. Parker v. Simonds, 8 Met. 205. Wright v. Quirk, 105 Mass. 44. Capen v. Bartlett, 153 Mass. 346. The plaintiff’s cause of action not having depended on the result of the action in which as a deputy sheriff he attached the property [26] replevied, the writ, declaration, execution, and alias execution in that litigation, should not have been admitted. If the defendants had prevailed, the plaintiff still would have been accountable to the true owner, and his cause of action depended in the present action upon the instrument. Moore v. Quirk, 105 Mass. 49. The trial court well might have paused before admitting evidence which could only tend to prejudice the defendants by enhancing damages. But, the jury having been instructed that the amount of the judgment in the original action would not affect damages, which were to be assessed at the fair market value of the property, and that the papers were admitted only “to show out of what this transaction here arose,” we are inclined to hold with some hesitation that it is to be presumed that the instructions were followed, and the defendants were not harmed. Burghardt v. Van Deusen, 4 Allen, 374. Warner v. Jones, 140 Mass. 216. Dixon v. Smith, 181 Mass. 218. Troy v. Rudnick, 198 Mass. 563, 568, 569. Under a practice which was said to be anomalous in Hudson v. Miles, 185 Mass. 582, 588, the jury also, if they found a breach, were to determine for what amount execution should issue. Newhuryport v. Dams, 209 Mass. 126,132. R. L. c. 177, §§ 9,10. The defendants obligated themselves to restore the property in the same condition as of the time when it was taken, and the measure of damages recoverable was stated when this case was first before us, by Sheldon, J. “The plaintiff is entitled to the fair market value of the property in that order and condition as of the time when it should have been delivered to him, that is, on the date of the final judgment in the replevin suit.” Maguire v. Pan-American Amusement Co. 205 Mass. 64, 73. The property consisted of “sceneries, costumes and properties” adapted for, and used in, the presentation of a musical production or play, entitled “The Wild Rose.” Its value when thus employed might be much greater than the price it would bring in the market at an auction sale independently of the play, which the evidence does not positively show the purchaser could control and present to the public. It cannot be said, however, that there was no market value, as was held in Green v. Boston & Lowell Railroad, 128 Mass. 221, 226, where a family portrait had been lost by the carrier; and the exceptions state, that “there was conflicting evidence from va [27] rious witnesses as to the value of the costumes, scenery and other property replevied, with and without the playing rights.” The fair market value “is at least the highest price which a normal purchaser not under peculiar compulsion will pay at the time and place in question in order to get the thing,” said Holmes, J., in Bradley v. Hooker, 175 Mass. 142, 143, which was followed in National Bank of Commerce v. New Bedford, 175 Mass. 257, 262, and East Tennessee Land Co. v. Leeson, 183 Mass. 37. A purchaser might buy the whole with the intention of adapting the property to other uses, or he might have acquired, or believed that he could acquire the play, and accordingly would be willing to pay an enhanced price; or the owners of the play at the date of the attachment if a sale had been held, might have attended and bid. The plaintiff was entitled to have the jury consider these probable conditions in their estimation of market value, and the first, second and fourth requests having omitted any reference to them, were insufficient. Stevens v. Tuite, 104 Mass. 328, 331, 336. The success or failure of the play as a theatrical enterprise, ordinarily would depend largely upon proper management, and evidence of what would have to be done for its successful presentation had a direct bearing upon the value of the property if purchased to be used in the business. But the question asked of the witness Lederer, not having been limited to the play in question, was irrelevant. The further testimony of this witness as to the sale at auction, having been indefinite and uncertain with no statement of a definite price, was properly withdrawn from the jury and excluded. It is not an approximate but the substantially accurate result in money obtained for property sold which furnishes the criterion and imparts evidentiary value. Atherton v. Emerson, 199 Mass. 199, 210, and cases cited. It also was discretionary as to how far the credibility of this witness could be impeached by cross-examination on collateral issues, and the ruling admitting in evidence for this purpose his report to the directors of the company which bore his name, of its financial condition resulting from the production of the play, was not subject to exception. Jennings v. Rooney, 183 Mass. 577, 579. The fifth and sixth requests were waived at the argument, and the third, seventh, eighth and ninth, and the exceptions [28] to the instructions, not having been argued, must be treated as waived. • We have considered all of the exceptions relied on by the defendants, and are of opinion for the reasons given, that they should be overruled. So ordered.