Aber v. Bratton

Sherwood, J. This case is replevin for a boat. The property was taken on the writ, and delivered to the plaintiff. The suit was commenced on the fifth day of May, 1884. The declaration, in addition to the usual count in replevin, contained a special count for damages alleged to have been sustained by plaintiff by reason of having been deprived of large gains and profits which he could have derived from the use of the boat. The following is the second count: “ And for that, whereas, the defendant, on May 5,1884, at the township of Alpena, unlawfully took and detained certain other goods and chattels, the property of said plaintiff, to wit, one sail-boat, called Calypso, which said name is painted on [360] said boat, of great value, to wit, the value of $700, being the goods, chattels, and property of said plaintiff, and the possession of which the said plaintiff was then and there, to wit, on the day and year last aforesaid, lawfully entitled; and-the said defendant, well knowing that at the time and place aforesaid, and for several days then next following, that the said plaintiff had and possessed special means and opportunity for using and employing his said boat in securing and obtaining oats from a certain vessel then aground on Middle Island, in Lake Huron, whereby said plaintiff would have derived large gains and profits, to wit, $1,000, for the use of his said boat during the time aforesaid, had not the defendant wrongfully deprived plaintiff of the same in manner as aforesaid.” The plea was the general issue. The cause was tried in the Alpena circuit, by jury, and the plaintiff obtained judgment for $400 damages. The facts, as shown by the record, are as follows: The plaintiff lived about a mile from Lake Huron, in the town of Alpena. The boat in question was owned by plaintiff, and used by him in light freighting business, attending xvrecks, and carrying grain. The boat had been drawn out of the water the fall before upon the beach, upon the premises of J. D. Turnbull, and kept there through the winter, and until the second day of May, 1884, about" which time a large grain vessel stranded on Middle Island reef, about five or six miles from where plaintiff’s boat laid. Knowing the condition of the stranded vessel, and that she was laden with oats, and anticipating that a portion of her cargo would probably be jettisoned, the plaintiff thought to use his boat for the purpose of securing the oats as they were thrown from the vessel. It required eight or ten men to launch plaintiff’s boat. On the second of April the defendant took a sufficient number of men, went to the beach, and launched the boat. While they were engaged in launching it, the plaintiff sent one Fitzsimmons to the beach, who informed the defendant that the plaintiff sent him to get the boat, and he x’ef used to let Fitzsimmons have it. Defendant, after lauxxching the boat, xxsed it two days in transporting oats from the wi’cck, securing during the time [361] about 1,800 busliels, and paying the mate therefor about $15.50. Several other vessels which tried to get some of the oats were not allowed to obtain any by the mate of the wrecked vessel. After using the plaintiffs boat two days, the defendant returned the boat to the place where he took it, and he testified upon the trial that the plaintiff had frequently told him to use the boat when he wanted it. This was, however, denied by the plaintiff. On the fifth day of May, after the boat had been returned to the beach, the plaintiff called upon the defendant at his place of business, at his mill; and he testifies that the defendant then and there told him he should not have the boat until he paid the defendant an account of about $100 which he owed the defendant. This the defendant denies, and says that he offered to go and' help the plaintiff launch the boat if he wanted it. It further appears from the testimony that the boat cost, when made, about $500; that its use was worth, ordinarily, about a dollar per day ; and that plaintiff sold the boat after-wards, and in 1884, for $175 ; that the land where the boat laid was not owned or controlled by either party; and that no other effort was made by the plaintiff ,to get possession of his boat than as above stated. It further appears from the testimony of • the plaintiff in the case that the boat, on the day the suit was commenced, laid upon the beach; that she was in his possession, and he was to her before commencing the suit; saw the defendant at his mill, and made no demand upon him for the boat. Upon the foregoing facts, it is claimed by defendant’s counsel replevin will not lie. Neplevin will not lie against one who is not detaining the property when the writ is sued out: Burt v. Burt, 41 Mich. 83; Morrison v. Lumbard, 48 Mich. 548. Actual detention of the property is necessary to sustain replevin: Wells Repl. §§ 52, 134; Sexton v. McDowd, 38 Mich. 148; Hickey v. Hinsdale, 12 Mich. 99; Bacon v. Davis, 30 Mich. 157. It is the condition and situation of things when the suit is commenced which furnish the grounds for the action : Belden v. Laing, 8 Mich. 500 ; [362] Clark, v. West, 23 Mich. 242; Cary v. Hewitt, 26 Mich. 228. The plaintiff himself testifies he was in possession of the property at the time the suit was commenced. If this were true, — and no person denies it, — it is difficult to see how he can maintain this action, and he cannot be heard to say now that it was not true. The defendant may have been guilty of a trespass in taking and using the property in the first instance ; but after he returned the property from where he-took it, and the plaintiff had regained his possession, replevin would not lie. It is to recover the possession that the action-can be maintained at all, and, if the plaintiff already has the possession, he cannot maintain the action to recover the-damages for the detention on some former occasion. We think the defendant’s request upon this subject should have been given in the charge of the court to the jury. Upon the subject of damages, the charge and. rulings of the court, and the action of the jury, were altogether-wrong. The measure of damages is not to be made to depend upon, the use or non-use of the property by the defendantneither can the use to which the plaintiff could have put the property during its detention, and the prospective- estimates of profits therefrom, contingent upon his chance of business, determine the value of its use. Such rule would be too uncertain and speculative. No speculative or contingent profits should have been permitted to enter into the computation. A fair and reasonable compensation for the use of the boat,, with such special damages as were known and necessarily accompanied the detention, and any actual injury occurring to the property, should have limited the-amount of the recovery, if the action had been well brought: Allis v. McLean, 48 Mich. 428; McKinnon v. McEwan, 48 Mich. 106; Hart v. Blake, 31 Mich. 278 ; Allison v. Chandler, 11 Mich. 554 ; Talcott v. Crippen, 52 Mich. 633; Allen v. Fox, 51 N. Y. 562; Smith v. Griffith, 3 Hill, 333 ; Durst v. Burton, 47 N. Y. 175 ; Wells Repl. 303 ; 2 Suth. Dam. 374; Mayberry v. Cliffe, 7 Coldw. 117; Barney v. Douglass, 22 Wis. 464; [363] Carter v. Carter, 36 Mich. 207; Sirrine v. Briggs, 31 Mich. 443 ; Butter v. Collins, 12 Cal. 457; Brannin v. Johnson, 19 Me. 361; Houghton v. Rock, 8 Phil. 42; Butler v. Mehrling, 15 Ill. 490. But we need not consider this subject further, nor the other errors assigned, inasmuch as we have come to the conclusion the action will not lie. The plaintiff had his property, and the defendant had no-right to it or its possession. It therefore only remains to reverse the judgment, and allow the defendant his costs in both courts, in finally disposing of the case. Of course, no-new trial can be granted, and judgment will be entered accordingly. The other Justices concurred.