Douglass v. Galwey

58 A. 2 | Conn. | 1904

The greater part of the goods in question under the present writ were, in two former actions of replevin by one Unmack, a receiver in bankruptcy of the defendant, adjudged to belong, some to the plaintiff, and the rest to a copartnership of which he was a member. Unmack v. Douglass, 75 Conn. 633. The defendant, under a plea of the general issue, offered in evidence the files of two pending actions, one brought by the plaintiff and the other by said copartnership, on the replevin bonds given in the former cases. In each it was alleged that a return of the goods and payment of the damages and costs, given by the judgments, had been demanded and refused. One of the judgments was for a return and $975 damages and $33.48 costs; the other was for $655 damages and $35.23 costs. The files so offered showed that attachments of property of the bondsmen had been made on June 10th, 1903, but that no personal service was made upon them until July 17th. The present action was brought between June 10th and July 17th.

These files were received in evidence against the objection of the plaintiff, and the court ruled that they established an election by him to resort to the bonds, instead of the property, and barred the present suit.

When one who has two distinct causes of action arising out of the same transaction puts one in suit, he is not debarred from afterwards suing on the other, unless the remedy first sought is inconsistent with that subsequently pursued.

The judgments in the Unmack suits established, as between the parties to them, that the plaintiff, either individually or as a copartner, had title to all the goods which he has now replevied from the defendant. They also created an obligation on the part of Unmack to return them, with other goods, and to pay nearly $1,700 in damages and costs. The damages were for the detention of the goods. The obligees in the replevin bonds had a right both to their goods and to the damages. When they demanded both and both were refused, their right of action on the bonds became absolute. It could not have been defeated by a subsequent payment of the damages and costs. That would have worked no change of title as to the goods. It could not have been defeated by a subsequent tender of the goods, without payment of the damages and costs. Had both a return of the goods and a payment of the damages and costs been made, there would still have been a right of action for nominal damages on the original refusal. Bradley v. Reynolds,61 Conn. 271, 282. No more could the plaintiff's right of action be affected by a subsequent recaption of the goods, whether effected with or without the help of a new suit. That would simply go in reduction of damages.

If, therefore, it be assumed, for the purposes of the case, as claimed by the defendants, that the actions on the bonds were brought before the case at bar, this could constitute no bar to its maintenance.

The observation made in Walko v. Walko, 64 Conn. 74, 77, on which the plaintiff relies, to the effect that the security furnished by a replevin bond virtually takes the place of the goods replevied, refers only to the office of the bond pending the replevin suit.

The files received in evidence should have been excluded. They were totally irrelevant to the issue.

There is error and a new trial is ordered.

In this opinion the other judges concurred.