Little v. Bliss

The opinion of the court was delivered by Houton, C. J.: Upon the trial it was conceded, and the jury were instructed, that the note and mortgage were executed by W. H. Bliss to Mrs. C. Mackey on the 8th of April, 1890. The note was for $237, payable May 8, 1889, with 10 per cent, interest after maturity. The mortgage to secure the note contained the following provisions : “The party of the first part [W. H. Bliss] hereby agrees to keep the property constantly insured for the benefit of the second party [Mrs. Mackey] ; and if the note or any part of the same, or any interest thereon, shall not be paid according to the terms thereof; or if the goods and chattels or any of them shall not in the opinion of the party of the second part be properly cared for or shall in the opinion of the party second part become deteriorated or damaged, or if the same or any part thereof shall be removed or sold, or any interest therein be in any manner disposed of, or [98] any attempt be made to remove or sell the same or any part thereof by the party of the first part or any other person; or if anyone shall levy on said goods and chattels or any part thereof, then, and in any of the above events, all of the note not then paid shall become immediately due and payable, and the party of the second part, or her heirs, executors, administrators, assigns or authorized agents, may enter upon the premises where the goods and chattels may be found and take possession of the same, and may remove, sell and dispose of all the property or any part thereof in any manner they shall think fit without notice to anyone, and out of the proceeds thereof pay the amount then due on the note, together with $45 attorneys’ fees, and shall also pay out of the proceeds of the sale all the necessary costs incurred in pursuing, searching for, taking, removing, keeping, storing and selling the property, and may pay all the liens thereon having precedence over this mortgage ; and shall pay , the remainder, if any, to the party of the first part or his legal representatives.” The jury allowed Bliss, as the value of the property, $273. They found there was due Mrs. Mackey, when the replevin suit was commenced, $129.09. Under the instructions of the court, they deducted this $129.09 from $273, leaving $143.91, to which they added interest- thereon, at the rate of 6 per cent, per annum, from August 22, 1889, making $154.34, the amount of' the general verdict. Under the conceded facts and the findings of the jury, when Mrs. Mackey brought her action on the 21st of August, 1889, to recover possession of the goods and chattels in controversy, she was' entitled, under her mortgage, to the' possession of the same. [99] 1' SiSi-bond!1011 s' measured recovery* [98] ' On December 16, 1889, when the replevin action was called for trial, Mrs. Mackey was also entitled, under her mortgage, to the possession of the property. It appears when the case was called W/H. Bliss was [99] present by his attorney, but neither Mrs. Mackey nor her attorneys appeared. Thereupon the case was dismissed, and the costs taxed to her. These she paid. When the replevin action was dismissed, Bliss, under the provisions of § 184 of the civil code, might have demanded that the court proceed to inquire into the right of property, and the right • of his possession thereto. This 'Was not done. The replevin case was not tried upon its merits. Bliss failed to claim a return of the property, and only a judgment f°r costs was rendered. Notwithstanding the dismissal, Bliss was not precluded of his full remedy upon the bond. One of the conditions of the bond was that the plaintiff “shall duly prosecute the action.” This is a separate and independent condition. Upon breach of that condition, Bliss was entitled to recover all the damages he had sustained. (.Manning v. Manning, 26 Kas. 98.) As Bliss was indebted to Mrs. Mackey upon his note, secured by the mortgage for about $130, she was entitled to the possession of the property at the time her action was dismissed. The amount of damages in an action on a replevin bond must depend materially upon the right of the plaintiff bringing his action to the property. But, as it appears the plaintiff had no legal title or right of possession to the property, he sustained no actual damages by the refusal of Mrs. Mackey to deliver the same to him. Cobbey on the Law of Replevin ( § 1355) states the rule thus : 3. damages only' “ Where the defendant had no title, he can only recover nominal damages on the bond. In an action by the obligees against the obligors in a re-plevin bond, where the title to the property was not determined in the replevin action, and the title thereto and the right of posses [100] sion are in a person other than the obligees, they are only entitled to nominal damages.” (Brookover v. Esterly, 12 Kas. 149; Wells, Rep.,p. 254, § 458; 2 Suth. Dam. 46 ; Smith v. Whiting, 100 Mass. 122.) On August 6, 3890, the defendant below' offered in writing to confess judgment for $1. and costs. As plaintiff was entitled to judgment on the bond for nominal damages only, he can recover no costs since the date of that offer. It ought to be observed that the plaintiff below has not appeared in this court by brief or otherwise. Judgment of the district court will be reversed, and the cause remanded with direction to that court to render judgment upon the findings of fact in favor of plaintiff below for $1, and the costs accruing to August 6, 1890. The subsequent costs will be taxed against him. All the Justices concurring.