148 N.W. 604 | S.D. | 1914
This action grows out of a controversy over the ownership of a certain meat market, including tools and fixtures, together with a stock of meat and meat products usually dealt in in such places, also a two-horse spring wagon, a meat delivery -cart, a single harness, a double harness, and about $80 in money. Defendant West was in possession of said market, and, on or about the 5th day of August, 1911, plaintiff commenced an action for the recovery oif the possession thereof. Pie furnished an undertaking in claim and delivery, and caused said property to be seized by the sheriff; but, within the time, alio wed for that purpose, the defendant furnished a redelivery bond, with the defendant Inter-State Surety Company as surety thereon, and took and retained possession of said property during the pendency of the action. A trial was had on the nth day of the following December, which resulted in a verdict in favor of plaintiff, and which fixed the value of said property at -$1,500. Upon this verdict, judgment in the alternative was entered on the 26th day of January, 1912. Plaintiff, claiming the property had not -been returned or tendered to him, brought this action against the defendant West and his.surety on the redelivery bond, when the plaintiff again had verdict and judgment in his favor for the value of the meat market and contents, as fixed by the jury in the replevin action, 'with interest thereon and costs. Defendants assign numerous errors on rulings of the trial court and bring the case here on, appeal.
Appellants claim that, after the verdict in the replevin suit, defendant West offered to return all -oif the property in -dispute to-the plaintiff, while the plaintiff contends that defendant did not offer to return it all; that what he did offer to return was not in the same condition as when it was taken under the redelivery bond; .that it had depreciated in value; that he did not offer to pay the difference in value, or to pay the money that had been taken by defendants, or to pay the costs that had been taxed in favor of the plaintiff in that action.
Numerous errors are assigned, based upon the admission and exclusion of evidence and upon the giving of certain instructions to the jury and the refusal to give certain requested instructions.
Under the circumstances disclosed by the record in this case, - wre do not think there was such an offer made by the appellants to
“On an offer being- made to return or deliver personal property sufficient to constitute a valid tender, where the party who makes the tender is acting within his legal rights, it is the duty of the one to whom the tender is made to accept and receive, the property, and, whether it is refused or accepted, under such a condition the title .thereto* vests at once in the obligee, and the obligation to. the extent of the duty is thereby performed.”
But the acts claimed to constitute a return of property in this case do not bring the case within this rule. That part of the property consisting of the money, wagon, cart, and harnesses was readily capable of manual delivery, and was not of such a character that it would be presumed to (be kept in the meat, market. As to this property, there was no suggestion of a tender. Without holding that it was necessary to make an offer of manual delivery of the stock and tools in the meat shop, it was incumbent upon the appellants to at least accompany the key to the building with an invoice, and allow respondent an opportunity to check up. the list and ascertain what was there.
Appellants not having made a sufficient return or offer to return the property to relieve them of liability on the bond, they were