73 Pa. Super. 550 | Pa. Super. Ct. | 1920
Opinion by
The question involved is, “When a defendant in replevin files a eounterbond and retains the property in controversy, is he estopped from proving a value other than that shown by the counterbond?”
The Replevin Act of April 19, 1901, P. L. 88, provides in section 1, that the person applying for the writ shall execute a bond “with security in double the value of the goods sought to be replevied, conditioned that if the plaintiff or plaintiffs fail to maintain their title to such goods or chattels, he or they shall pay to the party thereunto entitled the value of said goods and chattels.” The third section provides that the defendant may file a counterbond “in the same amount as the original bond and with like conditions.” In section 7, after the title to the goods is finally found to be in the party not in possession, “the jury shall determine the value thereof to the successful party.” In section 8, “In order to determine the amount of bail, the plaintiff shall make an affidavit of the value of the goods and chattels, which value shall be the cost to the defendant of replacing them should the issue be decided in his favor.”
We held in Com. to use v. Lintott, 64 Pa. Superior Ct. 328, in a suit on a counterbond, that the plaintiff must be bound by his own valuation and cannot compel
We are met with a quotation from the above case of May, Stern & Co. v. Lintner, in support of appellant’s argument. In that case we said that defendant may refuse to accept the valuation for he has not had the opportunity of being heard in this regard, but if he chooses to accept it, the plaintiff cannot repudiate his solemn act attested by his oath. It is argued that the filing of the counterbond is assenting to the valuation fixed by the plaintiff. We do not think so. The amount of the counterbond, as will be seen by a reference to the portion of section 3 quoted above is, “the same amount as the original bond.” The defendant must file the bond in that amount in order to comply with the act. He has no option in the matter. His assent in order to bind him must be his voluntary act, and that assent is given when, as we said above, he has an opportunity to be heard, i. é., at the trial of the case. This view is borne out by a reading of the act. The jury is to determine the value of the goods. The plaintiff is bound by the value he has set, and therefore, cannot enhance the value at the trial, but the defendant can produce testimony to show a less value, and the ultimate determination of the question is with the jury. The value of the goods fixed by the plaintiff, in his affidavit, the act declares, shall be the cost to the defendant of replacing them, but this means from the plaintiff’s standpoint, and is not intended to preclude the defendant from showing another value.
An exception is taken to the portion of the charge, relating to the damages. The court instructed the jury to find the value of the automobile, and review the testimony in this regard. If the instructions were inadequate, the attention of the court should have been called to it: Kann v. Bennett, 223 Pa. 36, 49. As the record appears,
The assignments are overruled, and judgment is affirmed.