Savage v. Gunter

STONE, J. If the action of detinue instituted by Gabbert & Stanley and Savage against Gunter had proceeded to a verdict and judgment, and the verdict and judgment had been in favor of Gunter, the defendant in that suit, the judgment would necessarily have been against all the plaintiffs in that suit, “for the property sued for, or its alternate value.” — Code, § 2194. The present record, however, presents the question in a different form. The plaintiffs submitted to a voluntary non-suit, and thus placed it out of the power of the jury to render a verdict, assessing the value of the property. In such case, the circuit court had no data ou which to render a judgment, save for the costs of that suit. 2. We do not entertain a doubt of Mr. Gunter’s right to maintain a suit on this bond. If Gabbert & Stanley and Savage failed in their said action of detinue, the condition of their bond was broken ; and conceding that the cotton and bagging described in the bond belonged to them, this could not oppose a bar or absolute defense to this action. The ease would be precisely within the condition of the bond, “ to deliver the property to the defendant within thirty days after judgment, in case he fail in the suit,” and a recovery of damages for the breach is the inevitable result. — See Code, § 2193. It follows from this, that the several pleas which rest on the assertion of defendants’ ownership of the cotton and bagging as a bar to this action, are insufficient. — Wallace v. Clark, 7 Blackford, 298. When, however, this alleged ownership is yelied ou in mitigation of damages, the question is entirely different. In Belt v. Worthington, 3 Gill & Johns. 247, the question was in substance the same as that presented by this record. The court in that case said, “If the judg [470] ment of nonsuit which followed, or which ought to have followed, the order to strike off the suit in replevin, had been conclusive of the rights of the parties to the property in controversy, the evidence would have been clearly inadmissible. But we apprehend that no right has been settled between the parties to the suit, which should induce the rejection of the evidence. The right to have a return of the goods is the only consequence of the judgment. The title to the goods is in no manner settled by it, and the defendant could not, therefore, be estopped by the proceedings, from an effort to mitigate the damages by setting up a title to the goods.” The evidence was admitted. To the same effect are the following cases : Harman v. Goodrich, 1 Greene’s (Iowa) Rep. 13; Wallace v. Clark, 7 Blackf. 298; City of Lowell v. Parker, 10 Metc. 309; White v. Webb, 15 Conn. 302. We hold, that, in this action on the bond, evidence of ownership in the defendants should have been received in mitigation of damages. The alleged variance, between the statement in the complaint of the time at which the nonsuit was taken in the former case, and the record of that case as read in evidence, presents a question which we do not deem it necessary to decide. The complaint can be easily amended, so as to conform to the facts ; and hence the question will probably not again arise. On the question of misde-scription of records, see 1 Greenl. Ev. § 70. We will not make the application of these principles to the several pleas found in the record. What we have said will doitbtless lead to correct rulings on another trial. Judgment of the circuit court reversed, and cause remanded.