Miltimore v. Bottom

ROSS, C. J. By contract of January 12, 1885, the defendant, Chicago Tire and Spring Co., agreed to allow the plaintiff to manufacture the 202 New York Bochum tires owned by it, then in possession of the plaintiffs, into car wheels to be disposed of according to the terms of the contract. June 1, 1888, the Chicago Tire and Spring Co., by an action of replevin, took from the plaintiffs these tires and gave the required replevin bond. That suit resulted in a judgment for the plaintiffs for the return of the tires, one cent damages and the costs. The bond was conditioned for the payment of such damages and costs as the defendants in the replevin suit, plaintiffs in this suit, might recover in the replevin suit, and that the Chicago Tire and Spring Co. should return the tires replevied, if such should be the final judgment in the replevin suit. The defendant Bottom is the surety on the replevin bond. This is a suit against him and his principal on that bond. The damages for the wrongful taking and detention of the tires, by the replevin writ, from the plaintiffs, were assessable and were assessed at one cent in that suit. No other damages for such taking and detention are assessable in this suit upon the bond. But the damages for the failure of the Chicago Tire and Spring Co. to return the tires, as ordered in the judgment in the replevin suit, were not assessable in the replevin suit. The failure to obey the order of that judgment for the return of the tires could not occur until after the rendition of the judgment for their return. Hence, in this suit upon the bond given in the replevin suit, it was legitimate for these plaintiffs to have ascertained the damages which they sustained by the failure to return the tires, as ordered by the judgment in the replevin suit. Such damages could be shown by evidence tending to show the amount which it would cost them to supply the same kind and size of tires, or in case such tires could not be obtained, the plaintiffs could show the damages they had sustained by what they had done, before the re [171] plevin suit was brought, towards carrying out the contract of January 12, 1885. Hence evidence on both these points was properly received by the county court. That evidence tended to show that the tires replevied were of a peculiar make and size; that it would be difficult, if not impossible, now to obtain them and, if possible, the expense would be more than the penalty of the bond. It also tended to show that the plaintiffs, before the replevin suit was brought, had, in good faith, supplied themselves with a large part of the material required to manufacture the tires into car wheels, as required by the contract of January 12, 1885 ; that owing to the peculiar construction of the car wheels called for by that contract, the material so procured was of little value for any other purpose, and that the loss on this material and the amount they had expended on it and the tires, preparatory to manufacturing the required car wheels, was also much more than the penalty of the bond. At the close of the evidence the defendants waived their right to go to the jury on any question raised. They thereby submitted to the court to ascertain and determine the right of the plaintiffs to recover damages and the amount of such damages. The evidence fully justified the county court in finding that the damages sustained by the plaintiffs, by the refusal to return the tires as ordered by the judgment in the replevin suit, were equal to or greater than the penalty of the bond in suit. There was, therefore, no error in such determination. But the county court, against the exception of the defendants, rendered judgment against them, not only for the penalty of the bond, but for interest on the sum named as penalty from the time the plaintiffs obtained judgment in the replevin suit for return of the tires. Whether this judgment is correct against the principal in the bond, the Chicago Tire and Spring Co., we do not consider nor determine. Such judgment, so far as it included interest, was erroneous against defendant, Bottom, the surety in the bond. Mattocks v. [172] Bellamy, 8 Vt. 463; Glover v. McGaffey et al., 56 Vt. 294; Sturgis v. Knapp, 33 Vt. 486. For this error the judgment must be reversed. When the trial is by jury and the judgment of the county court is reversed, it has been the nearly universal rule to remand 1;he case, although the determination and judgment in this court are such as apparently to be determinative of the rights of the parties and of the judgment which must eventually be rendered. Moore v. Campbell, 36 Vt. 361. This rule is based on the ground that, on a retrial, the same facts might not be established; the verdict having been vacated by the error causing the reversal. The defendant’s counsel contends that this practice should prevail in this case. By waiving their right to go to the jury, the parties in effect made this a trial by the court. In such trials the usual rule has been that, when the case, on reversal in this court, has been so left that this court could clearly determine the judgment which the county court should have rendered, for this court to render such judgment. Especially has this been so held recently when the only error was the unlawful allowance of interest. Taylor v. Coolidge, 64 Vt. 506; Ballard v. Barton, 64 Vt. 388. Judgment reversed; judgment for the plaintiff for the penalty of the bond, with costs in the county court less the defendants’ costs in this court.