62 Colo. 226 | Colo. | 1916
delivered the opinion of the court.
Action in replevin. Judgment for plaintiff. Defendant brings the case here on error.
Corlett, defendant in error, who was plaintiff below, became the owner by purchase from one Bastían, of 13% • tons of hay, which is the subject of this controversy. Thereafter Barnard, plaintiff in error, through some supposed right which he thought at the time he had, took possession of and baled the hay. Corlett then sued out, in the justice court, a writ of replevin under which an officer took possession of the hay; but, upon the giving within time of the statutory bond, redelivered it to Barnard who fed it to his stock. On the trial in the justice court Barnard offered to let judgment enter against him for $135.00, which offer was rejected and plaintiff recovered judgment for $270.00. On appeal to the County Court, Barnard renewed his offer which was again rejected. In the County Court the jury, instead of finding the issues in favor of plaintiff, and fixing the value of the property, returned a general verdict in his favor and assessed his damages at $270.00. Upon this verdict the court entered judgment in which it fixed the value of the hay at $20.00 a ton.
The principal points upon which plaintiff in error seems to rely for a reversal, is the action of the court in instructing the jury that they should fix the value of the property taken as of January 20, 1914, the date of its detention by defendant, when the writ was served; and the form of verdict returned by the jury.
Barnard did not permit plaintiff to retain possession of the property under the writ served January 20, 1914; but gave a redelivery bond, retained possession, and by feeding the hay to his stock so converted it to his own use that it was impossible thereafter to make a redelivory, and the only question on the trial was the value of the hay at the time of the conversion. Under the circumstances of this case, it was not improper for the court to instruct the jury to find the value as of that date.
The court sent out with the jury two forms of verdict: one finding generally for the plaintiff, leaving the amount of damages blank to be filled in by the jury; the other finding the issues generally for defendant. The jury returned a verdict for plaintiff and assessed his damages at $270.00. It is urged this was error; that the verdict should have been in conformity with the provisions of section 220 of the Code, and that instead of assessing damages, the jury should only have fixed the value of the property, and that the judgment should have been in the alternative in conformity with section 246 of the Code. If this was error, it in no manner prejudiced any right of the defendant. There was but one question-to determine under the facts of the case, which was the value of the hay at the time of the conversion. No special damages were alleged or sought to be recovered. All the jury did in fact was to find the issues for plaintiff
Affirmed.