118 Ky. 395 | Ky. Ct. App. | 1904
Reversing.
In the month of April, 1903, appellee instituted this action against appellants, Kentucky Land & Immigration Company and the American Surety Company of New York, for $2,020 damages alleged to have been sustained by him under the following circumstances: He alleged that the Kentucky Land & Immigration Company instituted an action against him in the Lee circuit court in the month of October, 1897, and alleged that it was the owner of and entitled to the possession of 350 poplar and oak saw logs then in the possession of this appellee, and filed its affidavit as provided by section 180 of the Civil Code of Practice, and asked for an order of immediate delivery of this property to it. The order was granted, and delivered to the sheriff of Lee county, who complied with this order after the execution of the following bond: “We undertake to the defendant, James I). Crabtree, that the plaintiff Ky. Land & Immigration Co., shall duly prosecute this action and shall perform the judgment of the court therein by returning the logs ordered to be delivered to the plaintiff, if a return thereof be adjudged, and by paying to the defendant, James I). Crabtree, such sums of money as may be adjudged in this action against the plaintiff, not exceeding the sum of $1,460.00 and the costs of this action. This, the - day of October, 1897” —which bond was signed by the -plaintiff in that action and the American Surety Company of New York as its surety. Appellee, the defendant in that action, failed within two days to execute the bond to retain the property, and the sheriff turned over the property to the Kentucky Land & Immigration Company, as provided by the Code. Appellee also alleged in his petition that during the year 1897 the appellant disposed of these logs for' its own use and benefit, and had not returned the logs, nor the value of them,
The appellant traversed the allegations of the petition, except it admitted that it executed the bond, obtained possession of the logs under it, and that it dismissed its action as alleged. It denied it was responsible under this bond for attorney’s fees or for hotel bills, horse hire, or for’loss of time on the part of appellee in defending that action, and denied that it was responsible for the value of the logs received, for the reason that in that action the court failed to order a return of the logs or their value to the appellees. On the trial of this action the appellee recovered of the appellants $1,000 damages, from which the appellants have appealed.
The court, by its instructions, permitted the jury to compensate appellee for his loss of time and expenses incurred in defending the former action,, including a reasonable attorney’s fee incurred therein, and also the value of the logs taken by appellant from the possession of the appellee under the writ of delivery. The appellants complain of this instruction, and also contend that they were entitled to a peremptory instruction on the ground that under the terms
Under the state of pleadings as they exist in this case, the appellants’ contention is correct. We have not been referred to, nor have we been able to find, any decision of this court construing such a bond to make the obligors responsible for the loss of time, expenses incurred in defending the action, or attorney’s fee expended on the part of the obligee. We have found one case reported in 2 Dana, 256, of Yantis v. Burditt, which, under our construction, excludes the idea of allowing such expense, and attorney’s fee from being recovered. The court in that case said: “The court permitted the defendant to prove to the jury that he •had paid $35 as fees to his attorneys in the action of replevin, which was proved to be a reasonable compensation, and that sum probably constituted part of the finding. Does that act authorize the recovery of the fee so paid? It declares the plaintiff in replevin liable for 'all legal costs, as well as the action of replevin, as the action on said bond, and all such other costs and damages as the defendant in replevin may show himself entitled to.’ This language is certainly not as definite and explicit as could have been desired, but we do not perceive how we are to give any effect to the words 'such other costs and damages as he may show himself entitled to’ unless they are construed to mean all such costs over and above the legal costs of the present suit
If appellee was entitled to recover in this action for anything, he was entitled to recover for the value of the logs ai the time taken from him and the interest on that, amount from that date; and on this question the court erred, to the prejudice of. appellee, by not submitting the question of interest to the jury. The appellee, in his petition, does not allege any breach of the bond except a failure to return to
In Yol. 24 (2d Ed.) Am. & Eng. Ecy., 540, it is said: “For breach of the condition duly to prosecute the action or prosecute the action to effect, the defendant has been held entitled to recover in an action on the bond all the damages he had sustained by reason of the institution of the replevin action and the taking of the property from his possession, such as the costs awarded to the defendant in the replevin action and damages for the detention of the property. And on breach of such a condition, a recovery for the value of the property in the case of its nonreturn has been permitted, though in some cases the courts have denied the right to recover the value of the property.” And again, on the same page: “The condition to prosecute the action to effect or with effect requires a successful prosecution of the action, and extends to one continued prosecution from the commencement to the termination of the action. Thus, if on appeal by the defendant from a judgment in the lower court for the plaintiff the judgment is reversed, and no venire denovo is awmrded, the condition is broken. The condition is
For these reasons, the judgment of the lower court is i*e-versed, and the cause remanded, with directions that the plaintiff be allowed to amend his pleadings, if desired, and for further proceedings consistent with this opinion.