Washington Ice Co. v. Webster

delivered the opinion of the court.

On the 12th of August, 1870, the’Washington Ice Company, a New York corporation, procured from the Supreme Judicial Court of the State of Maine a writ of replevin, directed tp the sheriff of the county of Lincoln, in that State, commanding him to replevy “ a certain lot of ice, being about thirty-eight' hundred tons of ice, now lying and being in certain ice-houses situate in the town of Boothbay, in the county of Lincoln and State aforesaid, and owned or occupied by Nathaniel Webster, of Gloucester, in the county of Essex and Commonwealth of Massachusetts, of the value of fifteen thousand dollars, belonging to the Washington Ice Company, . . . now taken and detained by Nathaniel Webster, . . . and them deliver unto the said The Washington Ice Company,” and summon the defendant to appear before the court within and for the county of Lincoln on the fourth Tuesday of October, 1870, to answer unto the plaintiff, in a plea of replevin, for that the defendant, on the 1st of August, 1870, at said Boothbay, unlawfully took the goods of the plaintiff as aforesaid and thém unlawfully, detained; “ provided they, the said plaintiffs, shall give bond to the said defendant, with sufficient sureties, in the sum of thirty thousand dollars, being twice the value of the said goods and chattels, to prosecute the said replevin to final judgment, and to pay such damages and costs as the said defendant shall recover against them; and also to,return and restore the same goods and chattels in like good order and condition as when taken, in case such shall be the final judgment.”

The sheriff made a return to the writ, dated August 13th, 1870, as follows: “By virtue of- ais writ I have taken the ice

Webster pleaded the general issue to the writ, at October Term, 1871, and filed a brief statement and special matter in defence, setting forth, that, at the time of the alleged taking, as stated in the writ, the ice named therein was not the property of the plaintiff, nor had the plaintiff any right to the possession thereof, but it was the property of the defendant and one Babson, and was rightfully in the possession of the defendant, and was wrongfully taken from his possession by the plaintiff; and prayed judgment for the return of the ice in like good order and condition as when it was taken from the possession of the defendant, and for damages for such taking and detention, and for costs.

The case came on for trial before a jury, and evidence was put in; but the case was taken from the jury and submitted to the full court, on the report of the evidence by the judge, and transferred to the Supreme Judicial Court for the Middle District. It was there heard, and is reported as Washington Ice Co. v. Webster, 62 Maine, 341.

It is there stated, that the case came before the full court under an agreement that, if the action was maintainable, it was to stand for trial, but otherwise a nonsuit was to be entered. On June 26, 1874, the order of the full court was received, in these words: “ The nonsuit to stand, judgment for return of the goods replevied, damages to the time of taking to be assessed at nisi prms, if the defendant so elect,'or he may, if he prefer, resort to his remedy on the. bond.” The case was then continued to October Term, 1874, when the defendant elected to. have his damages assessed by a jury. The case was then continued to April Term, 1875, when leave was granted to the officer who served the writ, to amend his

. The action of replevin was tried by a jury, and the presiding judge submitted to them to find, in addition to their verdict, answers to two questions; and the jury, on the 14th of May, 1815, returned the following verdict: “The jury find that the defendant was damaged by reason of the taking of the property replevied in the suit, and assess damages for the defendant in the sum of six thousand five hundred and fifty-five dollars.” . They also returned answers as follows to the questions submitted to them: “ First. "What was the value of the ice replévied, where it was situated, at the time it was taken in this suit? Answer. Twenty thousand and sixty-nine dollars and thirty-three cents. Second. "What damage did the defendant sustain by reason of the taking of the ice in

On the 31st of‘July, 1878, a writ of return was issued on the judgment. It recited that the Washington Ice Company had replevied the 2331 tons and 1851 pounds of ice, of the value of $20,069.33, and set forth the terms of the judgment for the return, and for the recovery of the $7723.98 damages for the taking and the $477.67 costs, and commanded the sheriff that he forthwith return and restore the said property. to Webster, and collect the said sums of money from the Washington Ice Company, with interest from the 4th of May,. 1878. On the, 19th of August, 1878, a demand, was duly made upon the Washington Ice Company, for the return of the ice mentioned in the writ of restitution.

On the 17th of September, 1878, the Washington Ice Company paid to Webster $8379.36 in full for such damages and costs, and interest. The receipt given by Webster for the amount contained this clause: “ This receipt not to affect any further claim of the within-named Webster for the ice named in laid writ, or for any further damages or costs that may be recovered or recoverable by said Webster.”

Before delivering the ice to the plaintiff in the original writ of replevin, the sheriff, as commanded by the writ, and as

On the 13th of February, 1879, Webster brought the present action of debt, in the Circuit Court of the United States for the District of Maine, against the Washington Ice Company and Drummond and Gould, founded on the said bond. The defendants appeared, and by their plea prayed oyer of the bond and its condition, and set forth the condition, and pleaded that- they had kept all the conditions of the bond except the following,- namely, “and also return and restore the same goods and chattels in like good order and condition as when taken, in case such shall be the final judgment;” that, as to that condition, they had not kept it; that final judgment had been rendered against them in the replevin suit mentioned in the condition, for a return of the goods and chattels replevied therein; that they had not returned the same to the plaintiff according to the requirement of said .condition; and that they, therefore, submitted to the judg

There is a bill of exceptions, upon which various questions are raised by the plaintiffs in error. At the trial, the plaintiff introduced in evidence the .original writ of replevin in the suit in the state court, the return and the amended return, the pleadings in that suit, the - record of the judgment and of the proceedings Of the court therein, and the two orders of the full court. The defendants objected to the admission of the following question -to the jury and their answer thereto,recited in the record of the proceedings in the replevin suit, namely : “ What was the value of the ice replevied, where it was situated at the time it was taken in this suit ? Answer. Twenty thousand and sixty-nine dollars and thirty-three cents.” The court overruled the objection and. admitted the question and answer, and the defendants excepted.

The plaintiff then introduced in evidence the writ of return, and the fact of the making upon the defendants of the demand for the return of the ice replevied, and the receipt given by him to the Washington Ice Company for the damages, costs, and interest awarded by the judgment, of May 4, 1878. He also introduced in evidence the bond sued upon.

The bill of exceptions then proceeds as follows : “ The plaintiff thereupon contended, that the defendants were estopped to deny that the goods replevied were at least of the value set forth in the writ of replevin and in the replevin

The defendants -claimed that they were not thus estopped or precluded, and offered evidence to show that the value of the-ice replevied was less than ten thousand .dollars, at whatever time such value is to be assessed, and submitted to the court the following prayer for a ruling on this subject, viz.: That the defendants are not estopped to prove that the value of tide goods repheved-was less than fifteen thousand dollars by reason of the insertion of that sum in the replevin writ and bond as the value of the goods which the officer in that writ was commanded to replevy.

“ The court rejected the evidence offered, and overruled this prayer of the defendants, and -ruled that the defendants are estopped as is contended by the plaintiff, and that the plaintiff is not precluded from showing that the value of the goods replevied was more than fifteen thousand dollars. To which rejection of evidence and ruling the defendants then excepted.

“ The defendants contended that the statement of the officer who served the replevin writ, in .his returns thereon, of the quantity of goods actually taken by him. on the writ of replevin, is competent and conclusive evidence of . that quantity, in the trial of this action upon the replevin bond, and submitted to the court a prayer for a ruling to that effect.

“ The plaintiff contended that the statement of the officer, in his return, of the quantity of ice replevied, being indéfinite in the first return, and in the amended.return being of weights' taken at a different place from that at, which .the ice was replevied, and at subsequent times from that of the taking, was not evidence of the quantity of the ice replevied.

“ The court overruled the said prayer of the defendants in this respect, and ruled that neither of the returns was conclusive. evidence of the quantity taken by the officer upon the replevin writ. To which rulings the defendants then excepted.

“It was admitted by the plaintiff that the.damages which were assessed in' the action of' replevin, for the .taking and detention by the plaintiff in that action, of the property

“ Thereupon the defendants contended, that • the damages which the plaintiff is entitled to recover in this action are the value of the goods replevied, or of goods of like description, character, and intrinsic value, at the date of the judgment in the action of replevin, and of the order therein that the property replevied be returned and restored to the said Nathaniel "Webster, with interest thereon; and they offered evidence to prove, that the value of ice of like description, character, intrinsic value, and quantity as that replevied, at the place where the ice was replevied, and also at the place where the demand upon the writ of return was made, was less than ten thousand dollars at that time. The court rejected the evidencé offered, and overruled this prayer of defendants. To which rejection of evidence and ruling defendants then excepted.

“ The defendants thereupon offered evidence to prove that the value of the ice- replevied was less than ten thousand dollars at the time the demand was made upon the defendant, The Washington Ice Company, upon the writ of return issued pursuant to the judgment, in the action of. replevin,, for a return of the goods replevied, viz., August 19th, a.d. 1878, and presented a prayer to the court for a ruling that the damages which the plaintiff is entitled to recover in this action are the value of the goods replevied, or of goods of like quantity, description, character, and intrinsic value as those replevied, at the date of said demand. But the. court rejected the evidence offered, overruled this prayer of • the defendants, and ruled that the plaintiff in this action is entitled to recover the value of the ice replevied at the time it was taken by the officer upon' the replevin writ. To which rejection.of evidence and rulings the defendants then excepted.

“ The plaintiff contended that the finding of the value of

“ The defendants resisted tfiis motion, and contended that the value of the ice replevied was not a legal issue in the replevin action,, and that they were not precluded from showing that .the- value -of the ice was less than the. sum thus found; and that said question and answer were not evidence to be taken into consideration in determining the amount which the plaintiff is entitled' to recover in this action upon the bond; and they further contended, that, if the finding of value in the action of replevin furnished the rule of damages to lie assessed in this action, interest thereon should be cast only from the date of the demand upon the writ of return, and not from the date of that finding by the jury.

“The court' overruled the defendants’ position, sustained the motion of the plaintiff, and ruled that the finding of value by the jury in the action of replevin was conclusive against the defendants, and ordered judgment to be entered for the sum of twenty-eight thdusand nine, hundred and ninety dollars and fourteen cents damages, and that execution issue for that sum, that being the amount of- the said sum of twenty thousand and sixty-nine dollars and thirty-three cents, with interest thereon from the date of said 'finding, May 14, 1875. To which rulings-of the,-court, order, and decision, and entry of judgment for damages,- and each and every of them, defendants then excepted.” ‘

The principal argument on the part of the defendants in the present' suit is, that in the statute of Maine, Rev. Stat. 1857 and 1871, c. 96, § 11, which provides, that, in a replevin suit, “ if it appears that the defendant is entitled to a return of the goods, he shall have judgment and a writ of return according, with damages for the taking and costs,” the words “damages for the taking” mean all damages resulting from the taking- and detention of the goods; that, if the defendant in replevin recovers judgment for a return of the goods replevied, he may, at his election, have the damages which he has sustained by-reason of the taking and detention of them, '■.to the time of such judgment, assessed in the replevin suit, or he may recover those damages in a suit on the bond, but cannot have both; that, if he elects, as he did in the present case, to have his damages assessed in the replevin suit, he cannot, in a subsequent suit on the bond, founded on a failure to return the

This point seems to us, at best, to be altogether technical, and not to be founded on any sound principle. By the terms of the bond, it was made enforceable against the principal and sureties if the principal should not pay such damages and costs as Webster should recover against it, and should not also return and restore the goods replevied in like good order and condition as when taken. Under the condition of the bond, the sureties were hable to pay the damages recovered against the principal by the judgment of May 4,1878, in case the principal had not paid them, as it did. By the judgment in the present suit, they are only made liable according to their obligation, that their principal shall return and restore the goods in like good order and condition as when taken. Such we consider to have been the effect of the rulings of the state court in the replevin suit, in 62 and 68 Maine.

In the case in 62 Maine, the court, commenting upon the above recited provision of the Revised Statutes of 1871, c. 96, § 11, says, (p. 361:) “ When the defendant makes a good title to the goods replevied, he is entitled to damages for the interruption of his possession, the loss of the use of the goods from the time of their' replevin till their restoration, and for their deterioration.” It also says, (p. 362 :) “ The damages are to be assessed to the time of the verdict for the defendant, upon the-principles adopted in trover, save that the value of the property is not to be included therein.” It also says, (p. 363 :) “ It seems, therefore, fully settled that in a replevin suit, when, damages are not assessed at nisi prius, or where a nonsuit is entered, the defendant, when the property replevied is not returned,

•It is contended for the defendants, that, in this suit on the replevin bond, Webster is entitled to recover, as damages, only the value of the goods replevied, on the 19th of August, 1878, the date of the demand on the writ of return, with interest thereon; and some expressions of the court in the decision in 62 Maine, supposed to tend in that direction, are referred to. But they are wholly inconsistent with the other expressions of the court, above quoted, and contrary to reason and justice, in their application to the present case, and also to authority.

One of the expressions thus relied on by the defendants is this, (p. 363:) “The damages being assessed to the time of the verdict, if the goods replevied are not forthcoming on demand on the writ of return, the defendant, in a suit by him on the replevin bond, will be’entitled to.recover, as damages, the value of the goods replevied at the date of the demand on the writ of return, with interest thereon, the damages and costs assessed in the - replevin suit, and interest. Swift v. Barnes, 16 Pick. 194 .” But a reference to the case of Swift v. Barnes shows that the remark of the court had reference to a case where the value of the property replevied had risen,

In Parker v. Simonds, 8 Met. 205 , it is said that the property in Swift v. Barnes had risen in value after it was replevied ; and, in Parker v. Simonds, as some of the property had been sold at the time of the demand, and some was deteriorated and depreciated in value by use, the court said that the value at the time of the demand would not be the measure of damages without a proper allowance for the depreciation.

The rule in Massachusetts seems well, settled. In Leighton v. Brown, 98 Mass. 515 , which was a suit on a replevin bond, the value of the property, at the time of the demand for its return, was greater than the penal sum of the bond, but though the obligors contended that the proper measure of damages was its appraised value or its value at the time it was replevied, the court said: “ The appraisal made in the replevin suit is cor elusive against the party by whom it was made. Parker v. Simonds, 8 Met. 205 . But it is not. admissible in evidence against the present plaintiff, who, as defendant in the replevin action, had nb agency in procuring this valuation. Kafer v. Harlow, 5 Allen, 318 . In the present case, the value was greater at the date of the final judgment ordering a re

In Tuck v. Moses, 58 Maine, 461, the market value of the replevied property had increased from the time it was replevied to the time of the judgment for a return, and it was held, in a suit on the bond, that the defendants were liable for the value of the property at the date of the judgment for a return, with interest at six per cent from the date of that judgment to the date of the judgment on the bond.

It is, therefore, manifest that the court, in its opinion in 62 Maine, did not mean that the time of the demand on the writ of return was to be taken as the time for fixing the value of the property in any other case than one where there had been an increase in the value from thé time of the taking, to the benefit of wjnch increase the defendant in the replevin suit was entitled. ~

"We see nothing inconsistent with these views in Stevens v. Tuite, 104 Mass. 328 . In that case the defendant in a replevin suit had a "judgment therein for a return, and for damages assessed by computing interest on the appraised value of the goods replevied, from the date of the writ of replevin to the date of the judgment; and, in a subsequent suit on the bond, he sought to recover, not only the value of the property, with interest from the date of the demand under the judgment, but damages for inconvenience and loss resulting from the interruption of the possession of the property, which was the machinery of a manufactory, and damages for the expense, trouble, and delay attending the restoration of the establishment to its original condition. It \yas held that these damages were included in the damages recoverable in the replevin suit. The case was a peculiar one, and the defendant in the replevin suit did not, as in the present case, ask merely for an allowance, as damages, of a continuation of the interest oñ the value of the property when taken, from the time of the verdict in the replevin suit to the time of the verdict in the

The decisions in Maine support the views taken by the Circuit Court. In Smith v. Dillingham, 33 Maine, 384, in a suit on a replevin bond, the value of the property replevied, as valued in the writ, was allowed, with interest from the date of the bond. The interest was objected to. No damages had been assessed in the replevin- suit. The court said : “ If damages for the taking had been assessed, as the statute provides, up to the time when the nonsuit was ordered, the estimate of damages in this suit for the detention would have commenced at that period. But the record shows that no such assessment was made. The wrong done to the plaintiffs consists in the taking of their property, and in the delay of making compensation for it. There is nothing in the statute which precludes the allowance of interest on the value of the property from the time when it was taken.” It certainly can maké no difference in principle that part of such interest is allowed in the replevin suit and part in the suit on the bond, so long as there is no duplication.

In Thomas v. Spofford, 46 Maine, 408, the case of Smith v. Dillmgham is cited by the court as authority for the proposition, that in a suit on the replevin bond the plaintiff may recover damages for detention, although they were not assessed in the judgment in the replevin suit.

The opinion of the court in 68 Maine contains nothing to support the views of the defendants. In that opinion it is' said, (p. 459 :) “ When this cause was first tried, the presiding justice was of opinion that the action was not maintainable, and that the defendant’s claim for damages for the plaintiffs’ unlawful taking could only be determined in a suit upon the replevin bond. By agreement of parties, the case was withdrawn from the jury, to be reported to the full court. If the action could not be maintained upon the evidence offered and introduced by the plaintiffs, a non-suit was to be entered. If the action could be maintained, it was to stand for trial; and the court were also authorized to pass upon the several propositions in respect to damages, made by the defendant’s counsel.

The trial court had instructed the jury as to damages. as follows, (p. 452:) “The defendant is entitled to the value of that ice, at the time it was taken, and where it was situated, for any lawful use to which it could be put.- If it was valuable to use there, he is entitled to its value for use. If it was-valuable for sale, he is entitled to its value for sale. If it was valuable to send to market, he is entitled to whatever value it bore at the time and place for any market, not what it might bring at another market, — I don’t mean that — but its value at Boothbay, on August 13,1810, for any purpose to which it might be put.” On this the Supreme Judicial Court. remarked, (p. 461:) “ To these instructions there can be no reasonable objections urged. The value at the time and place of taking is the rule.”

The contention of the defendants that, on the recovery of the judgment in replevin, the plaintiff in replevin was only bound to restore the goods or to pay their money value at that time, and that the liability for the breach of the replevin bond would be discharged if the plaintiff. in replevin paid such sum of money as would enable the defendant then to go .into the market and buy goods of like description and value, is not sound. Ice is-a peculiar article of property. The ice in question was taken in August, 1870, at a time of year when, as we all know, ice has a larger value than at some other times of the year. The defendant in the replevin suit was entitled to the value of that ice as of that time, and of the place where it was taken, as stated in the case in 68 Maine, for any lawful use to which it could be put. It was also said by the court in that case, (p. 462:) “As the taking by the plaintiffs was wrongful, the defendant is entitled to full indemnity. The measure of damages is the actual value of the property to the plaintiffs as an article of merchandise or sale.” Under these views, the defendant would not necessarily be made whole by

It is also contended for the defendants in this suit, that the Circuit-Court ei’red. in rejecting the evidence offered by them to show that the value of the ice replevied was less than $10,000, at whatever time such value was to be assessed, and in ruling that the plaintiff was not precluded from showing that the value of the goods replevied was more than the $15,000 named in the replevin writ and the bond.

We do not think the court erred in rejecting the evidence so offered by the defendants. .The writ of replevin stated that the quantity of ice was “about thirty-eight hundred tons,” “ of the value of fifteen thousand dollars.” The bond of the 12th of August, 1870, recited that the action was for “about thirty-eight hundred tons of ice,” “of the value of fifteen thousand dollars.” The first return of the sheriff, dated August 13, Í870, specified the quantity of ice as “about twen-. ty-five .hundred tons.” The amended return specified the quantity as being 2331 tons and^ 1851 pounds. The jury, in the trial of the replevin suit, found that the value of the ice replevied, where it was situated, at the time it was taken, was $20,069.33. The condition of the bond must be held to mean, that the quantity of goods replevied was to be restored, leaving it to be ascertained what that quantity was. It must be assumed, in the absence of evidence to the contrary, that the quantity taken by the jury as the basis of the value they found, was the quantity named in the amended return of the sheriff. The sureties in the bond were, by its terms, so connected with the replevin suit, that they are bound by the adjudications necessarily made in it. The jury could not have found any basis for the calculation of the interest as damages, unless they had found, as they did, the value of the ice, where it was situated, at the time it was taken. The sureties are bound by that finding.

There was, therefore, no error in excluding the evidence so offered by the defendants, or in permitting the plaintiff to show, as he did conclusively, by the record in the replevin suit, that the value of the ice, where it was situated;' at the

This is in accordance with the decisions in the Supreme Judicial Court of Maine. In Thomas v. Stafford, 46 Maine, 408, the court below had ruled that the plaintiff in the suit on the replevin bond was estopped from showing that the property was of greater value than that stated in the writ of restitution, which was the value stated in the-writ of replevin, the bond being for double that value, but the Supreme Judicial Court said: “ The defendant in replevin is not concluded by the value of the property named in the bond or the writ. If he was to be thus estopped from denying that value, he would be at the mercy of his opponent, whose interest it always is to fix as low a value as possible. ... It seems clear, on the authorities and fair reason, that the defendant in replevin is not concluded or estopped by the sum named in the bond as the actual value.” To the same effect-is Miller v. Moses, 56 Maine, 128, 141. In Tuck v. Moses, 58 Maine, 461, 477, it is held that the plaintiff in replevin is bound by the value which he puts upon the property in his writ, but that with the defendant in replevin it is otherwise, and, as he has no hand in .fixing the value in the writ, he is not estopped from showing it to be greater than is there stated.

The defendants submitted to the court a prayer for-a ruling that, the statement of the sheriff, in his return, of the quantity of ice actually taken by him on the writ of replevin was competent and conclusive evidence of that quantity, in the trial of the suit on the replevin bond. The bill of exceptions states' that the court overruled such prayer, and ruled that neither one of the returns was conclusive evidence of the quantity taken by the officer upon the' replevin writ, and that the defendants excepted to such rulings. No practical question ariáes upon this exception, for it does not appear by the bill of exceptions that either side offered any evidence for the purpose of showing that the quantity of ice replevied varied from the quantity stated in' the amended return. The evidence offered to be given by the defendants to prove that the value of the ice replevied was less than $10,000 at whatever time such value

The defendants complain of the admission in evidence of the answer of the jury in the replevin suit as to the value óf the ice replevied, where it was situated, at the time it was taken, and also of the ruling of the court that such answer was evidence in this suit, and- conclusive against the defendants, of the value of the ice, in determining the amount which the plaintiff is entitled to recover in this suit. It is contended for the defendants, that it was discretionary in the jury, in the, trial of the replevin suit, to answer the question referred to, and that it was no part of the legal issue in that trial. But, as has been shown, the rule adopted in that trial, for finding the damages, was to assess the interest on what was found to have been the value of the ice at the time and place of taking, and that such value was an indispensable element in arriving at a verdict. ' Such value was found by the jury, in finding the verdict, and, a judgment having been entered thereon, the fact so found is conclusive, not only upon the parties to the replevin suit, but upon those-who became sureties by the bond, to abide its eyent. The sureties became bound by the resúlt of the replevin suit by virtue of. their agreement contained in the bond.

In Drummond v. Ex'rs of Prestmam, 12 Wheat. 515 , the record of a judgment confessed by a principal to a creditor for a debt due was held to be admissible in evidence to charge a surety who had guaranteed the debt to the creditor. In Stovall v. Banks, 10 Wall. 583 , it was held that the sureties in the bond of an administrator were bound by a decree against the administrator,.made in a suit to which they were not par-, ties, finding assets in his hands which he had not paid over.

The sureties in the replevin bond were represented in- the replevin suit by the plaintiff therein, and were identified with it in interest, and claimed in privity with it, so as to be com

On the whole case, we are of opinion that there is no error in the record, and that the judgment must be affirmed, and it is so ordered.

Affirmed.