42 Ind. App. 573 | Ind. Ct. App. | 1908
Appellees sought to recover on two replevin bonds executed by the appellants in the months of July and October, 1904. Upon the execution of the bonds and the issuance of a writ of replevin the sheriff of Warrick county delivered to appellant Lindsey certain property, to wit, 102 shocks of wheat, 800 pounds of tobacco and 180 bushels of corn. The cause was put at issue and a trial had resulting in a verdict for $224.95, $24.95 of which was remitted, and a judgment rendered for $200. Each of said bonds was conditioned that appellant Lindsey would prosecute his action with effect and without delay, and return said property to appellees, if return should be adjudged by the court, and that he would pay to appellees all sums of money which might be recovered in the action.
In the replevin proceedings, the Superior Court of Vanderburgh County, in March, 1905, adjudged that the appellees were the owners, and entitled to the possession, of the property described in the complaint and heretofore set out; that they have the return of the same, and that appellees recover from appellant Lindsey their costs in said cause
Of the reasons for a new trial argued, we deem it necessary only to consider: (1) Whether an- action on the bond may be maintained for the value of the property, although the jury in the trial of the action failed to find the value thereof, where judgment for return was awarded to the defendant; (2) whether the court erred in giving to the jury instructions one and two of its own motion and in refusing to give instructions one and two requested by appellants.
The foregoing are the only Indiana eases passing upon the precise question here involved. In other jurisdictions, under statutes substantially like ours, the qrrestion has been decided the same way. Gardiner v. McDermott (1878), 12 R. I. 206; Pierce v. King (1884), 14 R. I. 611; Myers v. Dixon (1902), 106 Ill. App. 322; Washington Ice Co. v. Webster (1888), 125 U. S. 426, 8 Sup. Ct. 947, 31 L. Ed. 799; Washington Ice Co. v. Webster (1873), 62 Me. 341, 16 Am. Rep. 462 Balsley v. Hoffman (1850), 13 Pa. St. 603; Pittsburgh Nat. Bank, etc., v. Hall (1884), 107 Pa. St. 583, 588, 589; Sweeney v. Lomme (1874), 22 Wall. (U. S.) 208, 22 L. Ed. 727; Leighton v. Brown (1868), 98 Mass. 515, 516.
In the case last named, in which the action was upon a replevin bond, plaintiff had possession of the property, and judgment was for a return, the court say: “The breach assigned is the failure of the principal defendant, as plaintiff in the replevin suit, to comply with the order to return the property replevied, which was a part of the final judgment in that action. Damages for that breach must be the
In the event of a depreciation in the value after the taking and before the judgment of return this rule ought to apply as' shown by the decisions hereinafter given. The position of appellants with reference to the action of the court as to these instructions is not well founded. It is the general rule, for the purpose of recovery in an action on a bond or undertaking, that the value of the property be estimated as of the time of the judgment for its return with interest thereon to the time of the trial. Swift v. Barnes (1834), 16 Pick. (Mass.) 194, 196, 197; Caldwell v. West (1848), 21 N. J. L. 411, 416, 417; Peacock v. Haney (1874), 37 N. J. L. 179, 181; Western Mortgage, etc., Co. v. Shelton (1894), 8 Tex. Civ. App. 550; Talcott v. Rose (1901), (Tex. Civ. App.), 64 S. W. 1009; Walls v. Johnson (1861), 16 Ind. 374; Hopkins v. Ladd (1864), 35 Ill. 178.
In Yelton v. Slinkard, supra, it is said, at page 194: “If the property has been entirely destroyed, so that a return could not be had, the measure of damages would be the value of the property, at least.” In this connection, see, also, Whitney v. Lehmer, supra. Peters Box, etc., Co. v. Lesh (1889), 119 Ind. 98, and other Indiana cases cited by appellants are not necessarily in conflict with the foregoing Indiana eases.
It has been held that, if the value of the property was greater at the time of the order for its return than at the time it was taken under the replevin writ, the defendant in replevin is entitled to recover in an action upon the bond the value at the time of the order for its return. Treman v. Morris (1881), 9 Ill. App. 237; Leighton v. Brown, supra.
If, pending the action of replevin, and before the rendition of the judgment for the return of the property, the property
In Page v. Fowler (1870), 39 Cal. 412, 426, in which the question before us is ably considered, and in which many cases are cited and commented upon, the court sa'y: “In other words, the rule deducible from the authorities is, that in caseé affecting property of a fluctuating value, where exemplary damages are not allowed, the correct measure of damages, is the highest market value within a reasonable time after the property was taken, with interest computed from the time- such value was estimated. This is, in effect, the rule established in Scott v. Roger [1864], 31 N. Y. 676, where the precise question was more elaborately discussed than in any other case. ’ ’
Appellants insist that the judgment is excessive. The verdict returned was for $224.95. • The court upon hearing the argument upon the motion for a new trial — excessive verdict being one of the reasons therefor — required appellees to remit $24.95, which was done and judgment rendered for $200.
Judgment affirmed.