205 Mass. 64 | Mass. | 1910
1. The plaintiff’s first exception is to the refusal of the judge to allow him to show what expenses he had been obliged to incur in the defense of the replevin suit, including counsel fees, and also in the present action on the bond.
In the first place, the condition of the bond which constitutes the agreement upon which the plaintiff must rely, was simply that the principal defendant should pay whatever damages and costs this plaintiff should recover against it, and return the property replevied if such should be the final judgment. That is the limit of the defendant’s obligation. Swift v. Barnes, 16 Pick. 194. Leighton v. Brown, 98 Mass. 515. In the second place, the taxable costs which the prevailing party recovers in each case are in the contemplation of the law a full indemnity for all the expenses incurred in his defense or prosecution. McIntire v. Mower, 204 Mass. 233, and cases cited. Barnard v. Poor, 21 Pick. 378. Henry v. Davis, 123 Mass. 345. We have never followed the Illinois cases in which, under the prescribed form of replevin bonds, reasonable counsel fees have been allowed to a successful defendant in replevin. Gilbert v. Sprague, 196 Ill. 444, 453. Harts v. Wendell, 26 Ill. App. 274. Dalby v. Campbell, 26 Ill. App. 502. This case does not resemble Berry v. Ingalls, 199 Mass. 77; and the defendants were under no obligation, by con tract or otherwise, to indemnify the plaintiff for whatever expense was caused to him, as in Pond v. Harris, 113 Mass. 114; New Haven & Northampton Co. v. Hayden, 117 Mass. 433; Westfield v. Mayo, 122 Mass. 100 ; Faneuil Hall Ins. Co. v. Liverpool & London & Globe Ins. Co. 153 Mass. 63; Boston & Albany Railroad v. Charlton, 161 Mass. 32; Wheeler v. Hanson, 161 Mass. 370; and Consolidated Hand-Method Lasting Machine Co. v. Bradley, 171 Mass. 127, 133.
This exception cannot be sustained.
2. The plaintiff claimed interest on the value of the property from the time that it was taken on the replevin writ; but the judge ruled that he could recover interest only from the date of the verdict in the replevin suit. This ruling was too favorable to the plaintiff, and so he cannot complain of it. The damages for the taking and detention of the property, to the time of the judgment in the replevin suit, should be assessed in that suit;
But the property replevied was under attachment, and was held by the present plaintiff as an attaching officer. The statute provides that “ if the goods when replevied had been taken on execution, or if they had been attached and judgment is afterward rendered for the attaching creditor, and if in either case the service of the execution is delayed by reason of the replevin, the damages to be assessed for the defendant upon a judgment for a return shall be at the rate of not less than twelve per cent a year on the value of the goods for the time during which the service of the execution was so delayed.” R. L. c. 190, § 11. The attaching creditor here recovered judgment pending the action of replevin; the service of the execution was delayed by the replevin, and it has remained wholly unsatisfied. The plaintiff claims that he is entitled to interest at this higher rate from the date of the execution in the attachment suit to the date of the verdict in this action, and has excepted to the ruling of the judge allowing him interest at the rate only of six per cent per year. But this increased rate of interest is allowed only by way of damages
Both of the plaintiff’s exceptions must be overruled.
3. The trial judge ruled that the defendants could not be allowed to show that the value of the property replevied was less than $5,000. They made several offers of proof to show what they claimed to be the value of the property, all of which were excluded. The defendants have excepted to these rulings.
It was said in some of our earlier cases that the plaintiff’s averment in a writ of replevin of the value of the property which he seeks to replevy, or the recital of such value in the replevin bond, is conclusive upon him and upon his sureties in that bond, and that they cannot, when sued upon the bond after a breach of its condition, diminish the amount of their liability by proof that the property was in fact of a smaller value. Huggeford v. Ford, 11 Pick. 223. Swift v. Barnes, 16 Pick. 194, 196. Parker v. Simonds, 8 Met. 205, 213. Leighton v. Brown, 98 Mass. 515, 516. But the rule was not uniformly applied. In Pomeroy v. Trimper, 8 Allen, 398, the court, after pointing out that a plaintiff in replevin need not make any averment of the value of the property, (Blake v. Darling, 116 Mass. 300,) said that such an averment, if made, was admissible against him on the question of value, but was not conclusive against him nor in any way binding on the defendant. In Barnes v. Bartlett, 15 Pick. 71, 79, it was said that such an averment was prima facie evidence against a plaintiff in replevin. But it does not settle the jurisdiction of the court over the action. King v. Davey, 11 Cush. 218. In Gordon v. Jenney, 16 Mass. 465, in which the court refused to allow damages for depreciation in value of the property to a plaintiff who has kept it to abide the final judgment, this was put on the ground that he could have sold the property in such a manner as to ascertain its value, and that he would be answerable on his bond only for that real value.
But we are of opinion that the rule has been finally settled
We are of opinion that the judge erred in ruling that the plaintiff was entitled as matter of law against the defendants to have the property valued at $5,000, and that he should have ruled that the language of the bond afforded no more than prima facie evidence that the property was of that value.
We have been referred by the industry of counsel to a great many decisions upon this question in other States. As we find the rule to have been settled in this Commonwealth, we do not deem it necessary to advert to those decisions, although we have examined them all. They are not in accord, and it would be difficult to say which of the two rules contended for before us is supported outside of this Commonwealth by the greater weight of authority. But we are of opinion that as a matter of sound reason the better doctrine is that to which we adhere. If a plaintiff in replevin chooses to make a statement of the value of the property in his writ or in his bond, undoubtedly it should be regarded as an admission by him, and should afford evidence of that value against him and those who, like his sureties, are in privity with him. But it is against all the analogies of the law to treat the mere admission of a party, not essential, as we have
Accordingly the defendant’s exceptions to this ruling must be sustained. It is not necessary to deal with their offers of proof
4. The defendants have waived their exception to the refusal of the judge to rule that the plaintiff could not maintain this action, or could at any rate recover no more than nominal damages, by reason of the removal of the attachment suit to the United States court. We do not see how that exception could have been sustained. Barney v. Globe Bank, 5 Blatchf. 107. Dennistoun v. Draper, 5 Blatchf. 336. Schott v. Youree, 41 Ill. App. 476, and 142 Ill. 233. Petrie v. Fisher, 43 Ill. 442. Tedrick v. Wells, 59 Ill. App. 657.
The plaintiff’s exceptions must be overruled, and the defendants’ exceptions must be sustained; and it is
So ordered.