66 Vt. 168 | Vt. | 1894
By contract of January 12, 1885, the defendant, Chicago Tire and Spring Co., agreed to allow the plaintiff to manufacture the 202 New York Bochum tires owned by it, then in possession of the plaintiffs, into car wheels to be disposed of according to the terms of the contract. June 1, 1888, the Chicago Tire and Spring Co., by an action of replevin, took from the plaintiffs these tires and gave the required replevin bond. That suit resulted in a judgment for the plaintiffs for the return of the tires, one cent damages and the costs. The bond was conditioned for the payment of such damages and costs as the defendants in the replevin suit, plaintiffs in this suit, might recover in the replevin suit, and that the Chicago Tire and Spring Co. should return the tires replevied, if such should be the final judgment in the replevin suit. The defendant Bottom is the surety on the replevin bond. This is a suit against him and his principal on that bond. The damages for the wrongful taking and detention of the tires, by the replevin writ, from the plaintiffs, were assessable and were assessed at one cent in that suit. No other damages for such taking and detention are assessable in this suit upon the bond. But the damages for the failure of the Chicago Tire and Spring Co. to return the tires, as ordered in the judgment in the replevin suit, were not assessable in the replevin suit. The failure to obey the order of that judgment for the return of the tires could not occur until after the rendition of the judgment for their return. Hence, in this suit upon the bond given in the replevin suit, it was legitimate for these plaintiffs to have ascertained the damages which they sustained by the failure to return the tires, as ordered by the judgment in the replevin suit. Such damages could be shown by evidence tending to show the amount which it would cost them to supply the same kind and size of tires, or in case such tires could not be obtained, the plaintiffs could show the damages they had sustained by what they had done, before the re
Judgment reversed; judgment for the plaintiff for the penalty of the bond, with costs in the county court less the defendants’ costs in this court.