Heard v. Hicks , 101 Ala. 102 ( 1893 )

STONE, C. J.

An action was brought by the plaintiff Heard against J. A. Hicks, C. B. Hicks and J. E. Hicks, for the recovery of certain chattels in specie, under section 2717 of the Code of 1886. The plaintiff made oath and gave bond, and obtained a writ of seizure, which the sheriff executed by seizing the property sued for. This property the sheriff permitted to remain with defendants, upon the execution by them of a bond to the plaintiff, with Owen, Parker and two Goodwins as sureties. The condition of this bond was that, "If-the said J. A. Hicks et al., defendants in said suit, within thirty days after the determination thereof, if cast in said suit, deliver to the said George P. Iieard the above described property, then this obligation is to become void ; otherwise to remain in full force and effect.” The bond contains no condition or obligation to pay costs or damages. The bond expresses as its penalty the sum of seven hundred and sixty dollars, and we have copied the entire condition. It will be seen that it does not conform to the statutory requirements. — Code, § 2717.

The trial of the detinue suit, or suit for the recovery of chattels in specie, took place November 25, 1887, and resulted in a verdict and judgment for plaintiff for most of the property sued for. The judgment, following the verdict, was as follows : "It is, therefore, considered by the court that the plaintiff have and recover of the said J. A. Hicks and J. E. Hicks the said steam engine and fixtures, said gin and fixtures, said bay mare mule, said wagon and said three head of cattle, or the alternate value of said steam engine and fixtures of three hundred dollars; the value of the gin and fixtures of seventy-five dollars; the value of the grist mill and fixtures seventy-five dollars ; the value of the bay mare mule of fifty dollars; the value of the wagon ten dollars ; and the value of the three head of cattle of $8 each, being twenty-four dollars.” There was neither verdict nor judgment for damages for the detention of the property ; nor was there inquiry in the detinue suit, so far as the present record informs us, of any damage done the property pending the suit.

After the institution of the detinue suit, but before trial and judgment — the property sued for being in the possession of J. A. and J.E. Hicks — the mill and gin and their fixtures were burned, and the engine was seriously impaired in value as a consequence of the burning.

The breach complained of, and damages claimed in each count of the complaint are stated as follows : “And the plaintiff avers that the said J. A. Hicks was cast in said suit, and within thirty days after the determination thereof did not deliver to said Geo. P. Heard the above described property, and that the plaintiff has been greatly damaged thereby, in this : (1.) That by reason of said failure of said J. A. Hicks to deliver the said steam engine aforesaid, the plaintiff has been damaged in the sum of $300, with the interest thereon from, to-wit, the 25th day of December, 1887. (2.) That by reason of the failure of the said J. A. Hiclcs to deliver the said grist mill to plaintiff as aforesaid the plaintiff has been damaged in the sum of $75, with the interest thereon from the 25th day of December, 1887. (3.) That by reason of the said failure of the said J. A. Plic'ks to deliver the said gin, the plaintiff has been damaged in the sum of $75, with the interest thereon from, to-wit, the 25th day of December, 1887. (4.) That by reason of the failure of the said J. A. Hicks to deliver the said bay mare mule, the plaintiff has been damaged in the sum of $50, with the interest thereon from the 25th day of December, 1887. (5.) That by reason of the failure of J. A. Hicks to deliver said wagon, the plaintiff has been damaged in the sum of $10, with interest thereon from the 25th day of December, 1887. (6.) That by reason of the failure of said J. A. Hicks to deliver the said three head of cattle, the plaintiff has been damaged in the sum of $24, with the interest thereon from December 25th, 1887.”

It will be borne in mind that the delivery or replevin bond contains no stipulation binding the obligors for any damages that the plaintiff might suffer in consequence of the giving thereof. For this, as well as other reasons, it is unnecessary for us to consider the claim asserted in this suit for attorney’s fees incurred in the detinue suit. Sureties are bound only to the extent expressed in their obligation, or imposed by law. They stand on the terms of their contract.

Several pleas were interposed to the action, to some of which plaintiff filed demurrers. The rulings on the demurrers are shown only in the bill of exceptions. Under our rules of practice we are forbidden to consider these demurrers, but must presume they were abandoned. — 3 Brick. Dig., 78, § 7; Powell v. State, 89 Ala. 172, 8 So. Rep. 109; Beck v. West, 91 Ala. 312, 9 So. Rep. 199. It results that we must try this case as an issue joined on all the pleas, without considering their legal sufficiency.

Pending the detinue suit, and after the execution of the replevin bond, a fire destroyed the mill and gin, and damaged the engine. No proof was offered in explanation of the fire, or its origin, and no special blame is imputed to the defendants on account thereof. The recovery in the detinue suit, however, demonstrates that, to the extent the plaintiff had verdict and judgment, the property was his at the institution of the suit, and, as a consequence, the possession and use of it by the defendants in the detinue suit was wrongful.

The rulings of the circuit court in reference to the gin, the'mill, the mule'and the wagon were clearly free from error. The mule and wagon were tendered within thirty days after the judgment was rendered, and the plaintiff had the benefit of them. The mill and gin having been entirely destroyed by fire, they could not be delivered. Their alternate values had been assessed and made the judgment of the court, and before the thirty days expired those alternate values were tendered to the plaintiff. The complaint in the present suit claims the values of the mill and gin only at the prices fixed in the detinue recovery. The proof fully sustained this branch of the defense, and the circuit court’s rulings in reference thereto are free from error.

The engine and boiler present a different and'graver question. These had been injured by the fire, but were not destroyed. The defense relied on as to these was tender; but no offer was made to pay for the depreciation caused by the burning. The circuit court refused to receive testimony of such injury, and the plaintiff excepted.

The chattel or chattels sued for, together with damages for the detention, are the primary recovery in an action of detinue. But inasmuch as the chattel may perish, or become otherwise inaccessible, the rule and law of this action are that the alternate value of the property sued for must be ascertained and adjudged. And when more chattels than one are the subject of the recovery, the separate values must be ascertained and determined. This, because some of the chattels may, after judgment, be accessible and recoverable in specie, while others may be beyond reach. In this way the successful plaintiff has his rights secured to him, not alone by regaining possession of his property that remains accessible, but, also, by recovering the ascertained value of such part as may have gotten beyond the reach of process. So, when there is a recovery in detinue, the plaintiff must accept the specific thing recovered, unless by some default of the defendant he has armed the plaintiff with the right to demand, at his option, not the property itself, but its ascertained, alternate value. The damages for detention, recoverable by plaintiff, are intended tp compensate him for the injury he has sustained by being kept out of the possession and use of his property. Reasonable hire, taking into the account the injury to the chattel caused by its use, if there be no exceptional features in the case, will mark the plaintiff’s measure of. recovery," under the head of damages for detention.

But exceptional cases arise. The chattel detained may sustain a serious injury, very materially impairing its value beyond that, which would result ordinarily from its use. Now, as this, injury and impairment of value accrue to plaintiff’s property while defendant is tortiously withholding from him his right to possess and enjoy it, this abuse becomes a legitimate item and subject for the inquiry of damages for the detention. This, for the reason that if the chattel had not been.wrongfully detained, it does not appear that the injury would have ensued. Hence, prima facie, the injury is the result of the detention — the wrongful detention — which withholds the property from its rightful owner. In Wortham v. Gurley, 75 Ala. 354, 363, this court said, “ that the damages required to be assessed for the detention of the property included any deterioration in its value occasioned by the default of the wrong-doer, through neglect, abuse, or non-use, during the period of detention. This injury is shown to have resulted from the tortious act of seizure and detention as its natural and proximate cause, and was a legitimate element of damage in addition to the value of rent or hire.” See also 2 Sedgewick on Damages, (7th Ed.), 498 et seq.; Freer v. Cowles, 44 Ala. 314; Wilkerson v. McDougal, 48 Ala. 517 ; Archer v. Williams, 2 Car. & Kir. 26.

Having ascertained the extent of liability the defendant Hicks rested under for the use and abuse of the engine pending the detinue suit, what is the liability of his sureties on the replevin bond in relation thereto ? They bound themselves as sureties of Hicks that the latter, if cast in the action, would within thirty days surrender the property. They thereby took upon themselves the same duty and obligation to surrender the property which rested on Hicks, and assumed all his liabilities for the non-delivery. We have shown that his possession of the property pending the litigation was that of a tort-feasor, and that this was conclusively shown by the verdict and judgment in the detinue suit. We have shown further that detaining and holding the property, as he did, without right, it was his duty to restore it in the condition it was in when he executed the bond, ordinary wear and tear excepted. Burning a house over the engine could not fail to injure it materially beyond the mere deterioration of it from use, and therefore brought it within the principle that a tender of property thus circumstanced is not a full discharge of the obligation to deliver. The circuit court erred in not receiving testimony of the injury done the engine from the burning, and in holding that the plaintiff was bound to accept the engine, if materially damaged, in discharge of the bond.

There was some testimony tending to show that after the alleged tender the plaintiff exercised some control over the engine. If this be so, it will present a question for consideration by the jury, under the court’s direction, whether or not he received the engine, and whether he thereby waived, or intended to waive all claim for damage it had sustained.

The question in reference to the cattle.' If the plaintiff, with knowledge, received one or more cows in lieu of those embraced in the mortgage; or, if after being informed of the substitution, he retained such substituted cows, exercising acts of ownership over them, this would estop him from claiming a forfeiture of the bond for the non-delivery of the cattle, or any part of them.

Reversed and remanded.