Stevens v. Tuite , 104 Mass. 328 ( 1870 )

Ames, J.

In the action of replevin, it is sometimes said that each party is an actor, or plaintiff. It is substantially in the nature of a proceeding in rem. The question litigated is, whether the plaintiff is entitled to keep the property which he has taken from the defendant, or is bound to return it to him with damages for having intermeddled with it. The property in dispute may be said to be in the mean time in the custody of the law; that is to say, it is represented by the bond, which imports that it is held by the plaintiff to abide the event of the suit and to be disposed of accordingly.

If the plaintiff prevails, the result of the suit is, that, in the judgment of the court, the property belonged to him; and that he did right in taking it, and may lawfully continue to keep it, and dispose of it according to his pleasure. As the prevailing party, he would in that event recover damages and costs. The value of the goods would not make a part of his damages, for the reason that from the commencement of the suit be has had the property in his own hands, and is now adjudged to be the rightful owner. In most cases, his damages are but nominal and constructive, such as are incident to the vindication of a right that has been denied or violated, rather than for reparation for a substantial pecuniary loss.

On the other hand, if the defendant in the replevin, as in this instance, should be the prevailing party, (except in cases in which he prevails merely on the ground of some technical informality distinct from the merits,) the legitimate inference would be, that the property belonged to him, or at least that the plaintiff had no right to it, and by interfering with it was guilty of a violation of the defendant’s right; and that the latter is entitled to have it restored to him, and also is entitled to indemnity, in the shape of damages, for the wrong done in taking it out of his possession. The judgment, as ordinarily made up in such a case, assumes that the plaintiff, in compliance with the order of the court, will return the property, or that the sheriff (if he should refuse so to do) will take it from him and return it to the defendant; and that the pecuniary loss and general inconvenience which the wrongful act of the plaintiff has occasioned to the other party are to be covered by the judgment for damages. It is the business of the jury to assess these dam ages, unless the parties see fit to have them ascertained in some other manner. The value of the property is not in any event to be included, because the bond stands in place of the property and in contemplation of law-is capable of causing its immediate restoration. Even in the case of perishable property or such as has worn out or depreciated by use, or been destroyed by fire or other accident, or removed by being sold, or otherwise, to a distant part of the country since the service of the writ, tie bond would still continue to represent it, and the remedy upon the bond is understood to be its equivalent.

It is evident that the mere restoration of the property, or its equivalent in money, would fall short, and in many cases very far short, of being an indemnity for the wrong done to the defendant by interruption of his possession. Where that wrong consists merely in the detention of property, without waste or depreciation; or in the compulsory postponement of the exercise of his rights under legal process, the interest upon the value may be an adequate measure of the damages. Gen. Sts; c. 143, § 14. But the wrong to the original defendant (and present plaintiff) was more than the mere detention of the property and interruption of its use. It was more injurious to him than if he had been simply locked out of his place of business during the pendency of the suit. His complaint is, that his cloth printing establishment was wrongfully broken up; his steam-engine, machinery, fixtures and apparatus taken down and carried away; and that returning the property or its equivalent in money will still leave him subject to the great expense, inconvenience and delay of the entire reconstruction of his works. It is manifest that the damages actually awarded him do not cover all the elements of damage which he was entitled to prove, and might have proved; and that the amount allowed him was for that reason inadequate as an indemnity for the wrong that he had sustained.

The difficulty in the present plaintiff’s case lies in the fact that all these elements of claim are comprehended under the general head of damages recoverable in the original action. The time to prove his damages, and to have them assessed, in order to be included in the judgment, was when the replevin suit was before the court and on trial. At that stage of the case, and for that purpose, he certainly was an actor or plaintiff, claiming -omoensation for the injury done him by the wrongful act of replevying his goods out of his hands. In contemplation of law, h.is claim for compensation (independently of the return of the goods, or their equivalent in money, as secured by the bond) would be made up of, 1st, interest on the money value; 2d, the general inconvenience and loss resulting from the interruption of his possession; and 3d, the expense, trouble and delay attending the operation of replacing everything and restoring the establishment to its original condition. This is an entire and indivisible claim. He cannot recover part of it in one action, and subsequently maintain another action for the remainder. Warren v. Comings, 6 Cush. 103. Bennett v. Hood, 1 Allen, 47. It will not avail him to show that part of his true claim was omitted by accident or misapprehension. “ The time for such proof has gone by. He has had his day in court. It was the very thing which he might and should have proved in the suit in which the judgment was recovered.” Fuller v. Shattuck, 13 Gray, 70, 71. Homer v. Fish, 1 Pick. 439.

It may be said, that, under the order to return the goods “ in like good order and condition as when taken,” the original plaintiff was bound not only to deliver them to the party, and at the place from which they were taken, but also to replace them in the same position as before, and in the case of machinery, to put it in working order in its original place. We think, however, that such a construction of the order would lead to much practical inconvenience, and is not required by a fair interpretation of the words. It might be a matter of much detail and expense to carry out the order in that manner, and each item might be a matter of much controversy and litigation. The original defendant, in order to go on continuously with his business, may have been compelled to supply himself with new machinery, engines and fixtures to take the place of those that were improperly taken from him; in which case the literal replacement of- the replevied property in its original position would be very inconvenient and unreasonable. The general object of indemnity to him, on. h:s proving to be the prevailing party, would be as effectually and much more conveniently secured by a computation by the jury of his damages, according to the rule above laid down, in the trial of the suit. It is true, this computation would necessarily be to some extent a matter of estimate, in advance of the actual outlay; but this inconvenience, such as it is, would be slight, compared with that which would result from the .other construction of the rule.

The condition of the bond is, that the plaintiff in replevin “ shall pay all such costs and damages as the defendant in replevin shall recover against him, and shall also return the goods replevied in like good order and condition as when taken, in sase such shall be the final judgment.” There is no provision for the assessment of those damages, or for the correction of any mistake in their assessment, in a suit upon the bond. The damages intended by the bond are those recovered against the original plaintiff and in the original suit. If he had paid those damages, and costs, and also given up the property to the officer when demanded under the judgment, we do not see how there could be said to be a breach of the condition of the bond. The caveat contained in the agreement as to the damages does not in our opinion vary the case.

The rule adopted by the auditor appears to us, therefore, to have been entirely correct. We think that he rightfully considered the plaintiff’s establishment as an organized whole, and rejected all evidence of an offer to return a part. The case is therefore to be sent to an assessor, in order that damages be computed upon the principles above set forth.

Ordered accordingly.