17 Kan. 211 | Kan. | 1876
The opinion of the court was delivered by
This was an action of replevin for a horse, buggy, and harness. The defendants (now plaintiffs in error) gave a bond under §182 of the civil code, and retained possession of the property pending the action.- At the trial of the case the court below gave to the jury the following among other instructions, to-wit:.
“If you find for the plaintiff in said cause, you will assess his damages at the value of the use of the property taken by the defendants from the time of the taking of the same up to the present time.”
The jury did find in favor of the plaintiff and against the defendants, and assessed the value of the property in controversy at $475. They also, in accordance with said instruction, assessed the plaintiff’s damages for the unlawful detention of the property at $210. Seven per cent, interest on the value of the property for the time it was unlawfully detained would have amounted to $87.27. The plaintiff then remitted all the damages in excess of $87.27, and the court below then rendered judgment in favor of the plaintiff (now defendant in error) and against the defendants for a recovery of the property in controversy, or in case the property could not be obtained then for the value thereof, to-wit, $475, and for said $87.27 damages, and also for costs of suit.
The plaintiffs in error claim that the court below erred as to the measure of damages. They claim that the true rule for the measure of damages in such cases as this is the inter
The plaintiffs in error claim that in trover the plaintiff can recover only for the value of the property taken, and interest thereon; that replevin is governed by the same rules as trover, and therefore, that the plaintiff can recover in replevin merely the property taken or the value thereof and interest on such value. Now admitting, for the purposes of this case, that the plaintiffs in error are correct so far as trover is concerned, still they are certainly mistaken with respect to replevin. The two actions are very dissimilar. In trover the plaintiff elects to consider the property taken (if the property is still in existence,) as having become the property of the defendant, and he himself is owner of nothing but the mere value of such property, which value he seeks to recover. While in replevin the plaintiff continues to be the absolute owner of the property itself, (if he was the owner previously,) and he cannot elect in such action to take the value of the property instead of the property itself. (Wilson v. Fuller, 9 Kas. 193; Hall v. Jenness, 6 Kas. 365.) In trover the defendant detains nothing from the plaintiff but the value of the property, that is, money; while in replevin he detains the property itself. In either action the plaintiff is entitled to recover for the use of the exact thing which the defendant detains from him;. but the great difference is in the thing detained. In trover, it is substantially money. In replevin, it is not money, but is some kind of property different from money. Now the law fixes the value of the use of money, but it does not fix the value of the use of any other kind of property. Therefore, in trover it would be proper to give the plaintiff seven per cent, interest on the value which he recovers, for that is the legal value of
But even if we should concede that the plaintiffs in error are correct, and that interest merely on the value of the property should be allowed as damages, still we do not see how they expect to have the judgment in this case reversed. The judgment was rendered in the court below precisely in accordance with their views of what is the correct measure of damages. Therefore, taking any view of the case, the judgment of the court below must be affirmed.