107 Pa. 583 | Pa. | 1884
delivered the opinion of the court, January 5th, 1885.
The learned court below, in a very lucid and impartial charge, submitted to the jury'the question whether the defendant had returned possession of the goods in question to the plaintiffs, and the jury found they had not. The only portion of the charge excepted to, relative to this subject, is that which is covered by the fifth assignment, and the practical character of the complaint is that the court did not hold the letter of Mr. Lazear to be a sufficient surrender of the property. The court did say to the jury that the letter would have been sufficient if the goods were in possession of the plaintiffs at the time, but that if they were in charge of an agent of the defendant, it was necessary, in addition to the letter, that the agent should be withdrawn. We cannot see any error in this. Of course the possession of the agent was the possession of his principal, and so long as the principal merely averred a willingness to surrender, but nevertheless permitted their agent to remain in possession, it can hardly be said that an actual surrender took place. The question whether an agent of the bank was in possession when the letter was written, and until after suit was brought, was a pure question of fact, and, as it seems to us, was most clearly and fairly submitted to the jury, with full explanations and references to the testimony. The fifth assignment is not sustained.
The only other material question in the cause was whether the plaintiffs could recover without having obtained a judgment for the return of the goods, and without having the damages assessed in the replevin suit. , We think the law on this subject in Pennsylvania must be regarded as settled by the case of Gibbs v. Bartlett, 2 W. & S. 29. It was a well considered case, and the opinion contained a most careful review of the authorities and principles governing the subject. It was held with the utmost deliberation that a judgment de retorno habendo is not essential to a recovery on the
As the damages were not assessed in the replevin suit, and the goods were not returned, it was entirely competent to assess them in the action on the bond. As the amendment to the narr. simply conformed to the pleadings and the evidence on the trial, there was no error in its allowance.
Judgment affirmed