Green & Sons v. Bauer

Opinion by

Oelady, J.,

The plaintiffs issued a writ of replevin for a soda water apparatus of the declared value of f 125, as recited in the praecipe, writ and statement. The defendant gave a counter property bond, pleaded non cepit and property, and retained the goods.

The defendant had the soda water apparatus in his possession under a lease, which contained a right to purchase it under certain conditions. On the trial the learned court instructed the jury that there was a forfeiture of the defendant’s right to purchase, and, on an enforcement of that forfeiture, the title to the fountain would be in the plaintiffs. This was admitted by the defendant, and the only question for the jury was the amount of damages that the plaintiffs were entitled to recover. The title to the property was, at the time of the trial, in the defendant under the counter property bond;

The charge of the court was not clear nor consistent on this phase of the case. The defendant’s third point, which squarely raised the question, “ If the plaintiff is entitled to a verdict it must be in damages, and only such damages as he has suffered by reason of the defendant’s detention of the goods,” was affirmed. In the body of the charge the jury was instructed: “ The only question for you to determine is the amount of damages, and that is the value of the soda water fountain at the time of the replevin. That is the only question for you to decide, whatever damages for the detention of the soda water fountain that you find the plaintiff ought to receive, will be your verdict for the plaintiffs.” The fair interpretation of the charge of the court taken with the answers to the points would limit the amount of damages to which the plaintiff was entitled solely for the detention of the property. On the trial of such a case the plaintiff is entitled to recover the value of the property at the time of the replevin, and in addition thereto, damages for its detention and costs: Etter v. Edwards, 4 W. 63; Chaffee v. Sangston, 10 W. 265; Warner v. Aughenbaugh, 15 S. & R. 9; Harrisburg Electric Co. v. Goodman, 129 Pa. 206.

The evidence embraced in the first assignment of error should have been rejected. It showed an unauthorized and ineffectual effort by counsel to compromise a pending suit, and it did not admit any substantive fact. The offer of compromise was rejected, and it was not evidence as an admission of liability: Slocum v. Perkins, 3 S. &. R. 295; Arthur v. James, 28 Pa. 236; Bascom v. Danville Stove Co., 182 Pa. 427. The first and fifth assignments are sustained.

The judgment is reversed and a venire facias de novo is awarded.