50 A.2d 754 | Pa. Super. Ct. | 1946
Argued November 20, 1946. On July 26, 1945, the plaintiff issued his writ of replevin, filing an affidavit of value of $500.00 and bond in double that amount, and the writ was served on the defendants on July 31. The defendants gave no counterbond and the sheriff, after the expiration of the seventy-two hours,1 delivered the goods to the plaintiff, who filed his declaration on December 3, 1945, four months after receiving the replevined articles from the sheriff.
The issue at the trial should have been a narrow one, the plaintiff claiming the right of possession of the chattels under bailment leases, and the defendants denying the execution thereof, alleging that the goods had been sold on an open account and that the title vested. If the jury found for the plaintiff the verdict would be for the plaintiff for the goods, the plaintiff being in possession by virtue of his writ.2 If, on the other hand, the verdict was for the defendants (as it was), they not being in possession of the goods at the time of the trial, the verdict should have been for the defendants for the goods, and in addition should state the value thereof to the defendants,3 i.e., the successful parties. Therefore in the instant case the plaintiff had but one issue, the right of possession. The defendants had two, the *279
right of possession and the value of the goods if the jury found for them on the first issue. The plaintiff offered his testimony on the right of possession and the case passed to the defendants, who offered their testimony as to their title and right of possession. This closed the first issue. On the second issue the defendants offered the appropriate paragraph of plaintiff's declaration that the value of the goods was $500.00, such averment being in accord with plaintiff's affidavit of value and bond. Thus far the case was perfectly clear. But the court below then permitted the plaintiff to controvert the value of the goods, which value had been fixed by the plaintiff himself in his affidavit and bond. Plaintiff first offered to prove that the value of the goods at the time of the service of the writ "was less than $500, . . . attributable to the wear and tear during the time that [they were] in their [defendants'] possession, from the time . . . sold until . . . taken by the sheriff." The court properly excluded this offer but suggested that the plaintiff might prove "the deterioration . . . attributable to the defendants" since the teste of the writ. But the plaintiff simply called evidence as to that which was previously excluded, that is, the condition of the goods at the time received from the sheriff. There was no testimony of any deterioration in value occurring after the teste of the writ. Defendants' counsel particularly pointed this out to the court and unsuccessfully moved to strike out the testimony. Plaintiff's evidence was uncontradicted, except by his written admission to the contrary, and fixed the value of the goods at the time that he received them from the sheriff at $239.00. The court charged the jury that upon rendering a verdict for the defendants the value of the property should be fixed at either $500.00 or $239.00, and the jury accepted the latter sum. While not particularly involved here, it was error for the court thus to stamp the plaintiff'soral evidence of value at $239.00, *280
for the jury was not bound to accept it even though uncontradicted: See Nanty-Glo Boro. v. American Surety Co.,
The plaintiff's evidence of value was erroneously admitted unless confined to the deterioration, attributable to the defendants, between the teste of the writ and the delivery by the sheriff to the plaintiff.
The plaintiff in replevin is bound by his own affidavit of value and he cannot controvert it: May, Stern Co. v. Lintner,
In the instant case the errors in the admission of testimony offered by plaintiff as to reduced value, and in the charge of the court as to mitigation of damages, resulted in a verdict for defendants of $239.00. The defendants sought relief by making a motion for judgment n.o.v. (having presented a point for binding instructions) that the judgment should be entered in their favor for $500.00. But the defendants were not entitled to binding instructions, because the issue of right of possession was for the jury. It is at least doubtful whether the defendant could have presented a point denominated binding instructions to the effect that if the verdict was for the defendant for the goods, the value must be $500.00. This was the opinion of President Judge RICE in Casey v. Canning,
Defendants also made a "Motion to Amend, Correct and Mold Finding and Verdict", setting forth, in substance, that the plaintiff was bound by his affidavit of value, and praying for an amended verdict of $500.00. But it is only in exceptional cases that the court may, after recordation of verdict and discharge ofjury mould or amend that verdict, and such power is rarely, if ever, exercised, unless to make the corrected verdict conform to the obvious intention of the jury, i.e., to conform to a verdict actually rendered but informally or improperly stated in writing:Maize, Admr., v. Atlantic Refining Company,
In the instant case, in the event of a verdict for the defendants on the right of possession, the jury was required to fix the defendants' damages at $500.00. There was no room for controversy to exist under the law in this regard. The damages were irrevocably fixed with certainty and finality by the plaintiff's affidavit of value filed in order to obtain his writ of replevin. Thereafter the law excluded any proof by the plaintiff in mitigation of damages, except where the deterioration occurred after the teste of the writ. On the latter question there was no evidence. The defendants were entitled to a verdict for the value of the goods of $500.00, and with it interest from July 31, 1945, when the sheriff delivered possession of the chattels to the plaintiff.
The judgment of the court below is reversed and judgment is here entered for the defendants and against the plaintiff in the sum of $500.00, with interest from July 31, 1945, and with costs of this appeal.