Moller v. Moller ( 1924 )

Rosenberry, J.

It is the contention of the defendant that this action is an attempt on the part of the plaintiff to relitigate the issues determined in the replevin action. The trial court held, and we think correctly, that this is an action begun to recover damages for the refusal of the defendant to perform the contract under and by virtue of which the court found in the replevin action that he was the owne'r and entitled to the possession of the bonds. The replevin action settled no more than that — not that the defendant had paid the consideration or performed the contract which he entered into under and by virtue of which the bonds were transferred to him. We see no reason why the facts stated in the plaintiff’s complaint do not constitute a cause of action.

By the Court: — The orders appealed from are affirmed.