Pfeifer v. Layton Park Oil & Soap Co.

ViNJE, J. Plaintiff claims that the circuit court erred in four particulars in its affirmance of the judgment of the civil court. It erred (1) in finding that the defendant was entitled to the possession of the horse; (2) in finding that the defendant was damaged in the sum of $10 by reason of its seizure and detention as found by the civil court, and in the additional sum of $39 as found by the circuit court; (3) in awarding judgment for $100, the value of the horse as found, in the event the return of the horse could not be had; and (4) in finding its value to be $100. ' 1. In support of the contention that the court erred in finding that the defendant was entitled to the possession of the horse it is urged that it did not have title to the gravel and sand traded for the horse, because the real estate was mortgaged and was listed in bankruptcy proceedings and so the owner’s equity had passed to the trustee in bankruptcy, and because defendant had only a lease of it from Hofmeister, which did not authorize it to commit waste or ■ to remove gravel or sand therefrom. The weakness of the contention lies in the fact that plaintiff was trading his horse for real estate and was chargeable with notice of the record title of such real estate. The record showed defendant had no title. Plaintiff therefore had constructive notice of its lack of title. No claim is made that plaintiff was deceived, or deterred from examining the record title, by any statements or representations made by the defendant. But, even assuming that -plaintiff had a right to rely upon the title being in the defendant, he did not by merely demanding the horse become entitled to a rescission of the contract. At the time he demanded the horse he had received 138 of the 600 loads, or nearly one third of the purchase [5] price. He did not offer to return tile loads received or their value. This he should have done to entitle him to a rescission. Potter v. Taggart, 54 Wis. 395, 11 N. W. 678; Bostwick v. Mut. L. Ins. Co. 116 Wis. 392, 439, 89 N. W. 538, 92 N. W. 246. If he thought, in view of the claim made by the mortgagee, that it was not safe to return the value of the loads to the defendant, he should at least have indicated a willingness to make return thereof to whoever was entitled thereto. This he did not do. So it must be held the court properly found defendant was entitled to the possession of the horse at the time the suit was begun. 2. The measure of damages for the caption and detention in a case of this kind is the reasonable value of the use per day of the chattel seized and detained and not interest on the value of the chattel. Zitske v. Goldberg, 38 Wis. 216, 224. The evidence showed the value of the use of the horse was from $1 to $2 per day. It was seized December -29th and judgment entered in the civil court January 6th next. Under the evidence the assessment of damages was amply sustained. In the circuit court the defendant recovered only the sums actually and reasonably paid out by it between .January 6 th and March 8 th, on which date it bought another” horse to take the place of the one seized, and from which time up to May 16th, when the judgment was entered, no damages were allowed. Surely the plaintiff cannot justly complain of a ruling so favorable to him. 3. Instead of rendering a judgment in the alternative, both the civil and circuit courts should have entered a judgment for a return of the horse together with damages for its detention. The action was replevin brought in the civil court so the rules and statutes applicable to such actions in justices’ courts govern. Sec. 14, ch. 549, Laws of 1909, as amended by sec. 6, ch. 425, Laws of 1911 (Hirschberg’s Milwaukee County Laws, sec. 1308). The subject matter of the suit, the horse, was seized by the sheriff under the writ, [6] and npon the trial the plaintiff failed to recover. In such a case the statute, sec. 3143, provides for an order for a return of the property and a judgment for damages-only. It is only in cases where the property has not been seized that a judgment for the return of the property or for its value may be entered in justice’s court. Secs. 3738, 3748. Sec. 3736 directs the officer to keep the property seized until the cause is decided by the justice. So at the time of the trial the horse was in the custody of the court. When that is the case a judgment for its return alone, with damages, is sufficient independent of statutes regulating the form of judgment to be entered. Cobbey, Replevin (2d ed.) § 1110; Wells, Replevin (2d ed.) § 771. If the statute prescribes the kind of judgment to be entered) as here, that must be the judgment of the court. The fact that in this case, by an arrangement between the sheriff and plaintiff, the horse was turned over to the latter, did not change the legal custody of the horse. It was still in -the sheriff, and he was answerable to either party for its return upon the order of the court. So much of the judgment of the circuit court, therefore, as is in excess of a judgment for the return of the property from the sheriff and a judgment against the plaintiff for the damages found by both courts and costs is erroneous and is ordered stricken out. The judgment as so modified is affirmed, without costs, except that the respondent pay the clerk’s fees in this court. 4. In view of the modification of the judgment as just stated the question of the value of the horse becomes immaterial. By the Oowri. — Judgment modified as indicated in the opinion, and as so modified affirmed.