Dilworth v. McKelvy

Napton, Judge, delivered the opinion of the court. This was an action by the general owner of property against a person claiming a lien on it. The suit was prosecuted under the provisions of the seventh article of our practice act, and the property was delivered to the plaintiff. A verdict was found for the defendant, which, however, under the instructions of the court, simply determined that he was entitled to the possession of the property, and a subsequent proceeding was had to inquire into the value of the property, which resulted in its assessment at its absolute value, without any ascertainment of the extent of the defendant’s interest. A judgment was accordingly rendered for the full value of the property, or for its return, at the option of the defendant. Our statute provides that if the plaintiff fails to prosecute his action with effect and has the property in his possession, the value of the property shall be assessed by the court or jury, and the damages for the detention. The judgment, in the event of a verdict for defendant, is directed to be for a return of the property or the payment of its assessed value, at the election of the defendant, and for damages and costs. We are not of opinion that this statute intended the entire value of the property to be assessed except where the defendant is the absolute owner. Where the defendant has only a special interest in the property, the jury or court should assess the value of that interest. To assess the absolute value in such cases would lead to manifest injustice, as the result in the present case may serve to illustrate. Here, the defendant only claimed a lien on the lumber sued for to an amount less than the fourth of its value, and he gets a judgment for four times the sum he claims, or for the return of the property, with the privilege of electing which of these judgments he will enforce. So that if this judgment is to be [154] held conclusive and matters are to remain in this position, lie is put in possession, if be so chooses, of a sum of money to which he concedes himself to have no right whatever, or another suit must be had to give the parties their just rights. The real subject of controversy is left undetermined ; the defendant’s interest in the property is not ascertained. It may happen in a suit of this kind, brought by the general owner of property against one who claims a special interest in it, that the defendant’s interest in the property expires or is extinguished after the suit is brought and before judgment. In such an event the supreme court of Massachusetts held in one case that the judgment should be for costs only. (Wheeler v. Train, 4 Pick. 168) It may happen again that the defendant is a bailee of the property, entitled to its possession for a limited period, which has not expired when the suit is tried. In such a case the value of the defendant’s interest should be assessed and the judgment should be for that value or for the return of the property into the defendant’s possession until his interest ceases. The present is the case of a lien for a sum of money due from the plaintiff to the defendant. When the money is paid the lien ceases, and the defendant has no longer any right to the possession of the property. The judgment should be for the value of the defendant’s interest, or for a return of the property until that value is paid, at the option of the defendant. Of course, if the plaintiff chooses to pay the amount of the lien, the defendant has no alternative but to receive it, and his right to the possession of the property ceases. But the plaintiff may not see proper to tender the money, in which event a judgment in the alternative, to be determined at the defendant’s option, will give the defendant the advantage of selecting between an execution to enforce a moneyed judgment and the possession of the property until his claim is paid. Where the defendant has only a special interest and the plaintiff is a stranger, then the entire value, according to [155] the ancient doctrine of the common law, may be recovered by the special owner, who is answerable over to the general owner for whatever interest remains after the special claim is satisfied. In such cases the general value of the property would be assessed without regard to the value of the special interest. Eut this is not the case where the controversy is between the general and special owner. The judgment in each case must be modified by the circumstances, so that the merits of the controversy may be settled in one action. The statute is a general one, designed to meet all the exigencies which the old action of replevin did, and the equity of its provisions will embrace these modifications of the forms in which judgT ments should be entered. Such has been the construction in New York of a similar statute. (Seaman v. Luce, 23 Barb. 254-5; Russell v. Butterfield, 21 Wend. 302.) The questions, on the trial, concerning general average, the circumstances under which it ought to be allowed, and the rules by which its burdens should be distributed, were not determined by the court of conimon pleas. In the view taken of the case it was unnecessary. The instructions on both sides were refused, and the only question submitted to the jury was as to the existence of the defendant’s claim or lien. It is not necessary or perhaps proper that we should anticipate the action of the court on these questions in another trial; nor do we apprehend that there will be any serious difficulty in adjusting the rights of the parties on just principles. The instruction given by the court was, we think, right. An application of the principles upon which general average has been allowed in cases of sea-going vessels, would make the case proved upon the trial a proper one for contribution. It is settled that where the general safety requires a ship to go into port to refit, by reason of some peril, the necessary expenses of going into port and of repairing for the refitting the ship by unloading, warehousing, and reloading the cargo, are general average. (3 Kent Com., p. 236; Abbott on Shipping, 280.) [156] A point was raised by the testimony and discussed by the counsel in this court, as to allowing the plaintiff, in ascertaining his share of the general average, the value of his services and those of his servants and teams in unloading and perhaps in reloading the boat upon which his lumber was shipped. It appeared that the plaintiff, with his horses and servants, was employed for several days in hauling off his lumber from the keel-boat No. 17, and in fact that this work was done entirely and exclusively by his own workmen. The defendant’s agents and workmen were, however, also engaged in protecting the boat from the ice and in moving her from point to point until she was finally landed. It does not appear that any other owner of freight on any of the other five barges, which were in the peril produced by the low water and ice, was present or conti'ibuted any aid or incurred any expense in securing the barges or their cargoes. In estimating the losses accruing from the expense of unloading the barges, the price of the plaintiff’s services ought to be included in the general charges, and in determining his share of the general average the value of these services should be deducted from it. The judgment is reversed and the case remanded. The other judges concur.