Wallace v. Cox

Reese, C. J.

This action was instituted in the district court for Webster county. It is alleged in the petition that on the 17th day of July, 1909, the Clark Implement Company, a corporation, commenced an action in that court against the plaintiff to recover the possession of certain specific personal property, which is shown to be a threshing machine and traction engine; that an order of delivery was issued, the property of the value of $2,000 taken, when a replevin bond in- the sum of $4,000 was duly executed by the plaintiff in the action; that upon the trial of said cause such proceedings were had as resulted in a finding in favor of the plaintiff in this action, assessing his damages at the sum of $404.50; that the right of property and of possession were in this plaintiff, which was of the value of $2,000; that judgment Avas rendered in favor of this plaintiff for the said sum of $404.50, with costs taxed at $121.60, and for a return of the property, or, in lieu of such return, the value thereof, to Avit, $2,000; that “defendant has not returned nor offered to return said property in the same, or substantially the same, condition in which it Avas taken, and no part of said judgment has been paid;” that “an execution was issued * * * on said judgment in favor of this plaintiff, which was returned Avholly unsatisfied.” The action is founded ón the replevin bond to recover the sum of $2,526.10, being the value of the property, damages, interest, and the costs of the former suit.

The defendants Cox and Boyd answered, admitting the averments of the petition as to the prior suit and the judgment rendered therein, but allege that, after the termination of said, action, the property involved in the suit was all returned to plaintiff, and in better condition than when taken under the writ of replevin. All unadmitted allegations are denied. Defendant the Clark Implement Company filed its separate answer, but which is substantially the same as that filed by Cox and Boyd. The replies are general denials. The cause was tried to a jury; the result being a verdict and judgment in favor of plaintiff for the sum of $2,686.33. A motion for a new trial having been made, overruled, and judgment entered, defendants appeal.

Some objection is made to the above quoted part of the petition, and it is contended that the use of the word “substantially” so militates against the other averments as to render them ineffectual as an allegation that the property had not been returned. As we view the case, the objection is not of much importance, as there is no contention that the property was not returned. While it is admitted by plaintiff that the property Avas returned, it is insisted that it AAras not returned in the same condition as when taken from him under the Avrit, and that he refused to accept it. The theory upon AAdiich the case was tried by plaintiff Avas that the property Avas not returned within a reasonable time, and, when it was returned, it was in so badly damaged a condition as to relieve plaintiff from the duty of accepting it, and gave him the option of rejecting it and suing upon the bond for the value as found and adjudged on the trial of the replewin suit. It is contended by defendants that plaintiff has no option, but must receive the property, and could then sue for the difference in its value betAveen Avhat it was Avhen taken and at the time of the return. To the extent of submitting to the jury the question of the condition of the property when returned, the court adopted plaintiff’s Anew of the kvw. If the court Avas right in this, the language of the petition to which objection is made becomes unimportant.

The trial of the replevin case Avas had in November, 1909, the final judgment being rendered on the 1st day of December of that year. The action was commenced in July, 1909, tlie replevin bond bearing date the 19th, at which time the property Avas delivered to defendants. Defendants returned the property to plaintiff on or about the 25th of February, 1910, and, Avhen examined by plaintiff and others called by him for that purpose, he gave tó defendants a notice in Avriting that he would not accept it. This notice is dated the 26th of February, 1910, and refers to the tender of return having been made the day before. While there is a sharp conflict in the evidence as to the condition of both the separator and engine at the time the return was tendered to plaintiff, gs compared with their condition Avhen taken under the-order of replevin, there is sufficient to sustain the finding of the jury that both Avere very materially injured by Avear and breakage, and that their value was reduced probably one-half by reason of their impaired condition. So far as is shown by the record, they had been in the possession of defendants from the 19th day of July, 1909, until the 25th day of February, 1910, and there seems to be no doubt that they had been put to use during the threshing season while in defendants’ possession.

It is fundamental that, where a judgment in an action of replevin is against the plaintiff, it is his duty to return the property to the defendant within a reasonable time in substantially as good condition as Avhen taken, and this Avould satisfy the judgment in so far as the return had been ordered if the property Avas accepted by the defendant, but it Avould not cancel the money judgment for damages, nor would it deprive the defendant of his action for depreciation of the value of the property Avliile out of his possession. While this is all true, yet the duty of returning the property within a reasonable time and in substantially an unimpaired condition should be performed, and it does not lie with the plaintiff in the action, after long delay, to return property badly damaged by use or otherwise, compel the defendant to accept it, and then litigate the question of damages in another action. Our statute does not provide that the property shall be returned in the same condition as when taken, as in some states, hut the holding is practically uniform that such a statute is not necessary, as we have in effect held. Some of the authorities sustaining these views we here cite, but without quoting from any: Eikhoff v. Eikenbary, 52 Neb. 332; Berry v. Hoeffner, 56 Me. 170; Parker v. Simonds, 8 Met. (Mass.) 205; Capital Lumbering Co. v. Learned, 36 Or. 544; Childs v. Wilkinson, 15 Tex. Civ. App. 687; Fair v. Citizens State Bank, 69 Kan. 353; Douglass v. Douglass, 21 Wall. (U. S.) 98; Pittsburgh Nat. Bank of Commerce v. Hall, 107 Pa. St. 583; 34 Cyc. 1551, 1552; Cobbey, Replevin (2d ed.) sec. 1182; Wells, Replevin (2d ed.) sec. 422; Shinn, Replevin, sec. 679. In some of the cases cited, and in the citations from Wells and Shinn, it is said that the party returning may do so, even if the property is depreciated in value, and leave the one to whom the return is made to his action on the bond for the deficiency, but we apprehend that in order to secure this right, if it may be so secured, the return must be had within a reasonable time, which would be soon after the judgment. In this case the offered return could scarcely^be said to be within a reasonable time.

Where the property is not returned, the plaintiff’s measure of damages is its value when taken under the writ, Avith legal interest -thereon from the date of the wrongful taking by the plaintiff in replevin, but, in that event, the successful defendant must be content Avith a recovery of the value at the time it Avas taken from him, with legal interest to the time of the trial, and he can have nothing further in the way of damages.

In Romberg v. Hughes, 18 Neb. 579, it is said, the late Judge Maxavell writing the opinion of the court: “It is only in cases where a return of the property is had that the party to whom the property is returned is entitled to damages for the detention. The rule alloAving the value of the use is peculiar to replevin, and grows out of the fact that the party to whom the property is awarded seeks to recover the property itself, and not its value. In such case, when the property is returned, the party to whom the return is made is entitled to the damages aAvarded for the detention. If, however, a verdict is rendered for the value of the property, the action in that regard being one for damages only, the measure of damages is the value of the property as proved, together Avith laAvful interest thereon from the date of the unlaAvful talcing.” See, also, Aultman, Miller & Co. v. Stickler, 21 Neb. 72.

Since the jury in the replevin suit found the value of the property in dispute to be $2,000, and upon which the judgment was rendered, and the same was not appealed from, that must be the limit of plaintiff’s recovery, with legal interest from the time the property Avas talcen under the writ.

The judgment of the district court will therefore be reversed and the cause remanded, unless the plaintiff within 60 days from the rendition of the order hereby made remits from the judgment the sum of $404.50 as of the date of the judgment in this case. If such remittitur is filed, the judgment of the district court for the sum of $2,121.60, with interest at 7 per cent, on $2,000 from the 19th day of July, 1909, will be affirmed, but at the costs of the appellee. The effect of the affirmance of the judgment in this case, as modified, will be a satisfaction of the judgment of December 2, 1909.

Affirmed.