Sopris v. Lilley

2 Colo. 496 | Colo. | 1875

Wells, J.

The bond, which was the foundation of the plaintiff’s action, contained four conditions, to-wit: 1. That the principal should prosecute his suit to effect and without delay. 2. That he should return the property, if return should be awarded. 3. That he should pay all damages which might be adjudged against him for the detention thereof. 4. That he should save and keep harmless the sheriff.

The declaration assigned breaches upon the first and second conditions.

The condition to make return of the property is performed if the plaintiff in replevin restore the goods seasonably after return awarded. If such return be not made, the obligors are liable for the value of the goods, with, in some cases, perhaps a further sum to compensate for the detention, intermediate the award of return and the date of recovery in the action upon the bond. As a matter of course, it devolves upon the plaintiff in the action upon the bond, to establish the measure of his damages. When the value of the goods is fixed by the recital of the bond, this may, it would seem, ordinarily suffice. But when, as in this case, several chattels are replevined. and the condition of the bond sets forth only the aggregate value, and some are returned, and some are not, it is otherwise. In such case the recitals of the bond afford no information as to the value of either those returned or those retained. In the present case the evidence showed that the horses replevined were returned either on the same day upon which return was awarded, or upon the succeeding day ; as to these, therefore, we are compelled to hold the condition performed. So far as appears, the wagon replevined never was returned; but the evidence is silent as to its value or the value of its use. As before said, it rested with the plaintiff in this action to show this. Upon this breach, therefore, he was entitled to nominal damages only.

It seems to be assumed by counsel that damages for the detention of the goods, between the day of the execution of the writ of replevin and the award of return,.may be recovered under that assignment of breach which goes to the first condition of the bond. If the question were a new one, this condition might well be argued to be a mere alternative to whatfollows, thus importing that the plaintiff shall either prosecute his suit to a successful termination or, in default of so doing, perform the remaining conditions. The bond is given for the protection of the defendant, and certainly it appears absurd to say that the legislature has solemnly exacted of the plaintiff security to perform what must inevitably be to the defendant’s injury.

This condition has, however, generally been regarded, not as a mere alternative to the residue, but as of itself a substantial condition; so that for the breach of this, though all the rest should be performed, an action may lie on the bond; and this view was adopted in the present case when here at a former term.^* We are not at liberty to give to the words of the condition a contrary effect.

The question recurs, however, whether the damages occasioned by the detention of the chattels, pending the replevin suit, may be recovered under an assignment for breach of the bond that the principal did not prosecute with effect. The statute (section 12) provides that if the plaintiff in replevin fail in his suit, damages for the use of the property from the time it was taken until return awarded shall be adjudged against him.

It is these damages, manifestly, to which the third condition of the bond refers ; it is this judgment which this clause of the condition was intended to secure But by this condition the sureties undertake to be responsible for the payment by their principal of those damages, when judgment shall have been given therefor, and only in that event; and the general words of the first condition cannot be used to enlarge these particular words.

The sureties can be held liable for the damages occasioned by the detention of the goods prior to the award of return, only when those damages have been ascertained and adjudged against their principal, for this is the letter of their undertaking. Clark v. Norton, 16 Minn. 417; Fullerton v. Miller, 22 Md. 5; Pettygrove v. Hoyt, 2 Fairf. 68; Strong v. Mason; 3 Gilm. 56; Bein v. Hath, 12 How. 168.

An intimation to the contrary was given by the chief-justice when this case was here before, but the decision was expressly restricted to the sufficiency of the defendant’s plea.

The judgment of the district court is affirmed, with costs.

Affirmed.

* 1 Col. 266.