Denver Onyx & Marble Manuf'g Co. v. Reynolds

CALDWELL, Circuit J udge, after stating the case as above, delivered the opinion of the court. As tending to throw some light on its value, the court below permitted a witness to testify, over the objection of the defendant, that it cost a trifle over nine dollars per cubic foot to quarry and lay down at Phoenix, Ariz., by the side of the railroad track for shipment, the Arizona onyx in controversy. It is conceded that, if the onyx had no market value at Phoenix, then the cost of production, and such other facts as had a tendency to show its value, would have been competent. Ruppel v. Manufacturing Co., 96 Mich. 455, 55 N. W. 995. But it is said that the plaintiff proved it had a market value at Phoenix, Ariz., and also in New York, and that this proof superseded the necessity of [466] any other proof on the subject, and made the admission of the testimony as to the cost of production erroneous. As a rule, the cost of production and transportation is.not the best, or even competent, evidence of the value of an article. Without going into an extended discussion of the .rule on this subject, it is sufficient to say that the plaintiff proved, by two witnesses, that the market value of the onyx in Phoenix, Ariz., and in New York, was from three to six dollars per cubic foot more than it cost to produce it. There was no evidence to the contrary of this. So that, assuming that the admission of the testimony as to. the cost of its production was technically erroneous, it was an error which did not prejudice, but made in favor of the defendant. It is next assigned for error that the court refused to permit a witness to testify that the defendant had purchased Mexican Pedrara onyx for nine dollars per cubic foot in New York, but there was no offer to show whether this onyx was equal, superior, or inferior to the Arizona onyx, and the evidence offered was, therefore, clearly irrelevant. The defendant offered to prove that it found the onyx in the possession of the administrator of one Mills, and purchased and received the possession of the same from him. It did not prove, or offer to prove, that Mills or his administrator ever owned the onyx, or had any right to sell the same, or to the possession thereof. The plaintiffs ownership of the onyx was not seriously contested. The testimony we are considering seems to have been offered for the purpose of laying the foundation for the following instruction, which the defendant asked, and the court refused to give: “If the jury find that the defendant company purchased the onyx in question from another than the plaintiff, in good faith, for a valuable consideration, without knowledge of title in the plaintiff, and received possession from the vendor without knowledge of title in any other than .the vendor, then the plaintiff cannot recover under his complaint in this action.” The contention of the counsel for the plaintiff in error is that this is an action of replevin in the cepit, and that such an action will not lie except where the taking by the defendant was wrongful; and that, if the defendant came into the possession of the property in good faith, by purchase or otherwise from the wrongdoer, he is not a wrongful taker: and that the plaintiff, although he may be the owner of the property, and entitled to the possession thereof, must in such cases bring replevin in the detinet, and not in the cepit. The complaint alleges that the defendant “wrongfully took” and “unlawfully detains” the property. This is a perfectly good complaint under the Colorado Code, which abolishes the common-law form of actions. The term replevin does not appear in the Code of that state. Under that Code, this is “an action to recover possession of personal property,” and can be maintained in all cases where “the plaintiff is the owner of the property :f * * or is lawfully entitled to the possession thereof,” and the same is “wrongfully detained by the defendant.” Rice’s Colo. Code Proc. §§ 79, 80, and notes. At common law replevin lay where there was an unlawful taking, and detinue where there was an unlawful detention. The remedy provided by the Code “to recover posses [467] sion of personal property” supersedes the common-law action of re-plevin, whether in the cepit or in the detinet, and all the ancient learning relating to these distinctions became obsolete upon the adoption of the Code. 2 Nash, Pl. (4th Ed.) 812 et seq.; Nichols v. Michael, 23 N. Y. 204. Under the Code the action for the recovery of personal property lies, by one entitled to the possession, against one wrongfully holding the possession, whether the possession was acquired in good or bad faith. In the action, the plaintiff may, if he maintains his suit, recover damages for the taking or detention of the property, and, if the property cannot be returned, judgment for its value. The remedy is plain and complete. Burrage v. Melson, 48 Miss. 237; Nash, Pl. supra. The complaint in this case was sufficient, under the Code, whether the defendant acquired the possession of the onyx wrongfully or in good faith. However acquired, his possession was wrongful after the plaintiff made a demand for its delivery. The judgment of the circuit court is affirmed.