40 Md. 602 | Md. | 1874
delivered the opinion of the Court.
At the trial of this case, the defendant offered to prove by King and Wilkinson, that they were applied to by Mrs. Melissa A. Smith, one of the appellees, by her proper agent and by her authority, to sell for helas rapidly as they properly could, the goods purchased by her t\jo or three days before of Tracy, Irwin & Co. of New York, and which were the subject of the replevin suit, in which the bond sued on in this case was given ; that the said sale was to he for cash, and that although the transaction was an unusual one, they agreed to make it in consideration of a commission of five per cent. their regular commission in the ordinary course of their business, being from one to two and a-half per cent. ; that as part of the transaction, they were to advance to Mrs. Smith, three thousand dollars, upon the goods upon receiving possession of ’them, with the invoices ; that the goods were accordingly on a dray, in the course of trans
The. title may he in the plaintiff, while the right of possession for the time being may he in the defendant, or some other person. See Cullum vs. Bevans, 6 H. & J., 470, 471; Warfield vs. Walter, 11 G. & J., 85 ; Mason vs. Sumner, 22 Md., 321; McKinzie vs. Ballimore & Ohio Railroad Co., 28 Md., 175. But in the replevin suit between Tracy, Irwin & Co. vs. the present appellees, no such right of possession merely seems to have been involved. The only proof offered on the part of the plaintiffs in that case appears to have been offered for the purpose of showing that the sale of the goods was made under such circumstances and representations,- and the conduct of the purchaser with reference to the disposition of the goods after the sale to her, was such as to justify the vendors in annulling the sale and retaking the goods, and the evidence offered hy the defendants in the replevin tended to show that the goods had been fairly purchased hy Mrs. Smith, and the payment of the purchase money secured hy her notes and mortgages. In other words, it appears that the title to the goods was put in issue and no evidence was offered hy either party, except that which tended to support his title. We are therefore of opinion that under the peculiar circumstances of this replevin case, the verdict and judgment were conclusive as to the want of title of the plaintiffs in the replevin, and! that the question of title could not be re-opened in this suit. But we think that the evidence excluded by the Court below was admissible for another purpose. In the event of the jury finding that the appellees were not entitled to recover in this case the value of the goods, hut only the profits they would have reasonably made upon their sale, this evidence
The evidence set out in the second exception was clearly admissible. In the case of Belt vs. Worthington, 3 G. & J., 252, this Court said that the object of the law in prescribing that a replevin bond shall be entered into by the plaintiff before he should have the benefit of the writ, was only to give indemnity to the defendant. Judge Archer, in delivering the opinion of the Court in that case, says-: ££.the recovery on the replevin bond ought to be moulded in such manner as will best subserve the principles of justice; the question of evidence must always be regulated by a reference to the rights decided in the action and the character of the bond.” Judge Archer’s language in that case iS quoted with approval by this Court in Mason vs. Sumner, 22 Md., 319, 320. In the case of Walter and Warfield, Purviance, J., held that a plaintiff, in a suit on the replevin bond, can recover only the amount of the damage sustained by him personally, in consequence of the taking of the property from his possession, and refused to instruct the jury that the plaintiff, if they should find for him, was entitled to recover the value of the property mentioned in the schedule returned with the writ of replevin; and this ruling was affirmed on appeal to this Court, in 2 Gill, 216. If the appellees had sued Tracy, Irwin & Co. in trespass or trover for taking the goods in question and converting them to their own use, they could unquestionably have récouped from the plaintiffs’ claim of damages the amount of the price of the goods which still remained due and unpaid. Without referring to authorities elsewhere to sustain this proposition, though they are numerous and full to the point, we deem it quite sufficient to refer only to the recent decisions of this Court in
From what we have said, it follows that the measure of damages fixed by the appellees’ first prayer was, under the peculiar facts and circumstances of this case, erroneous, and there was error in granting it. If the goods had
The deposition of Mrs. Smith was not admissible for the purpose of showing that at the time the goods were replevied, they were the property of Tracy, Irwin & Go. We have already said that in this particular case, the verdict and judgment were conclusive against the title of Tracy, Irwin & Go., the plaintiffs in the replevin. The appellees’ third prayer was therefore properly granted.
The appellant’s first prayer -was properly rejected. The paper marked A, was clearly admissible for the purpose of showing what had been put in issue in the replevin suit, and upon what points evidence had been offered in that case.
We are also of opinion that the appellant’s third prayer was properly refused. There is evidence in the record legally sufficient to be submitted to the jury, tending to prove that the goods replevied were the separate property of Mrs. Smith. The fourth, sixth and seventh prayers ought to have been granted, and it was error to reject them.
The fifth prayer was properly rejected, as it is inconsistent with the sixth prayer which we have stated sets forth the correct measure of damages in this case.
Judgment reversed, and new trial awarded.