145 N.W. 132 | N.D. | 1914
In the year 1901, the defendants John and Martha Hunt' purchased a threshing, outfit consisting of engine, separator, blower, stacker, weigher, and self-feeder, from a machinery dealer in Rolla, North Dakota, giving in payment therefor his notes secured upon the said property. Before the maturity of the said notes, they were sold to the plaintiff, Valiancy, who in the fall of 1905 instituted the fore
The merits of that case are not, of course, now before us, excepting to observe that the property was directed to be delivered to Valiancy, and a money judgment for costs was also rendered in his favor. The decision was announced in December 31, 1910, and shortly thereafter Mr. Hunt’s attorney tendered to the attorney for Mr. Valiancy the sum of $216.40 costs, and later deposited the same to the credit of Mr. Valiancy in the State Bank of Holla. He also testifies that the said attorney told him that “it would be no use to make a tender of the property, because they would not accept it. They intended to realize upon their rights to recover upon the judgment for money damages.”
Although there is some doubt upon the question, we will assume that the tender of the machinery was duly and regularly waived by Valiancy.
The present suit was instituted by Valiancy against the Hunts and their bondsmen to recover upon the redelivery bond hereinbefore mentioned. The defendants answered alleging the tender of the property and the costs as a complete defense against the action. The principal dispute arises over the condition of the threshing outfit at the time of the tender of the same to plaintiff, and upon this question there is considerable conflict. The witnesses for the plaintiff testified that the machine was absolutely worthless. As an example we quote from the testimony of the witness O’Laughlin: “The machinery had been used before the bond was given for the years 1901, 1903, 1904, and 1905. It had been used for four seasons before the commencement of that action. The same threshing outfit was used during the fall of 1905 after this action was commenced, for threshing purpQses, and again during the
Upon the other hand, the defendant insisted that the machinery was in as good condition in 1911 as it had been when rebonded in 1905, and took the stand himself to substantiate this claim. He testified in part as follows': “Well, it is in better condition to-day than it was in 1905, and the reasons for that are that up until 1905, I ran it. (Objection sustained.) In 1905 it was all shaken to pieces on account of a small cylinder pulley of the machine when it was shipped here. . . . After 1905 the machinery was in very bad condition on account of it having been run with a pulley wheel too small on the separator, and it had shaken it all to pieces, and the engine had broken also what we call the intermediate gear on the traction in.such a condition that we couldn’t move it home; that is, we moved it on the.farm, but not to its usual place, and it was in that condition at the time it was replevined. In 1906 I hired a man for three months during the summer, a mechanic, and put him to work on it, replacing everything that needed replacing, and fixing the machine over so it was'practically in better shape for threshing than it ever was before. I will correct that by saying it was in a whole lot better condition. ... I rebuilt the machine; made it 50 per cent over from what it was in 1905. . . . The reason it is in better condition now is, as I said before, it had been all shaken to pieces in 1905, and after that it was replevined, and it has
Another witness testified that Gardiner, one of the bondsmen, and a defendant in this action, had removed from the machine the spout that carried the grain from the elevator to the wagons and put it upon his own threshing rig. Other witnesses for the defendant testified that the threshing rig was worth about the sum of $1,800, but as to two or three of those witnesses it is extremely doubtful if their evidence was
Thus, the witness Wilkie testifies as to the value of the rig as follows:
I was on the place the day before we come here. I went right by the rig and looked at it. . . .
Q. During those visits have you examined the condition of the machinery ?
A. Well, not exactly examined it to know what it would be worth; I have seen it standing there and looked at it now and again.
Q. That is, when you say you looked at it, you mean you have been up to it ?
A. Went up there myself.
Q. To where the machinery was?
A. Yes.
Q. That was during the past summer?
A. Yes.
Q. And then you were out there again on the 9th of this month?
A. Yes.
Q. Well, at those trips that you were out there, were you close to the machinery, close so you could see the condition it was in?
A. Yes, I was close.
Cross-examination by plaintiff to test his knowledge.
Q. You didn’t examine this machinery with the intention of finding out its value ?
A. No.
Q. You didn’t make any close examination of the machinery ?
A. No.
Q. You didn’t open it up and look into it at any place, did you ?
A. Well, a fellow could look in without opening it, by walking around.
Q. Casually looked at it as you walked past it ?
A. Yes, and looked inside of it.
Q. Did you make a careful examination to see whether everything was all right in it or not ?
A. No; I did not.
Q. Did you make a careful examination to see whether there was rust on any of the parts ?
*620 A. Well, there is often rust on new things; you can’t tell much by rust.
Q. You only saw it and walked around close to it; and when was it you walked around close to it and looked at it ?
A. I think sometime in July in the summer; I am not quite sure.
Question by defendant. Now, from your knowledge of the values of machinery, and from your examination of this machinery that you referred to, I ask you to state what the reasonable market value would be for that rig complete in this vicinity? Objected to. Overruled.
A. Well, I don’t really know. . . .
Q. Just listen to the question. Do you know, and have you known, the value, the market values of threshing machines, new and secondhand, from your knowledge as a thresher and purchaser of machines, and what you have seen bought and sold in Rolette county during the last year ?
A. I have.
Q. Now, from that knowledge, and from your examination of this machinery in question, can you state the reasonable market value of it? Objected to and overruled.
A. A couple of thousand or over, I should think.
Cross-examination.
A. I have seen no machinery like this in question sold during the past two years. I have seen some in the same condition. I haven’t examined the condition of this machinery so as to know the joints and the fixings of that kind upon it. I don’t know whether the joints and boards were rotted or not. I did not examine it that close. I •don’t know whether the flues in the engine are badly rusted or not. I didn’t examine them very close. . . . It is a fact that I failed to make a careful examination of this machinery. I didn’t ever examine it for the purpose of testifying as to its value. Just noted it casualty as I went there, and that is what I told you the other day. The fact that the boards and belts on the separator were rotted, and that the return flues in the engine were badly rusted, would make a difference in the market or sale value of the machinery at this time. It ought to have some market value at this time. I know it has some sale value at this time. I would not be willing to pay $1,600 for it.
There is not much dispute upon the legal proposition that, in order to avoid the terms of a bond, the defendants must show a return, or offer to return, of the property rebonded in substantially the same condition, and without material deterioration in value. See Cobbey, Replevin, § 1184; Note to Three States Lumber Co. v. Blanks, 69 L.R.A. at page 286; Gibbs v. Bartlett, 2 Watts & S. 34; Nichols & S. Co. v. Paulson, 10 N. D. 440, 87 N. W. 977; Jackson v. Morgan, 167 Ind. 528, 78 N. E. 633; Fair v. Citizens’ State Bank, 69 Kan. 353, 105 Am. St. Rep. 168, 76 Pac. 847, 2 Ann. Cas. 960; Schott v. Youree, 41 Ill. App. 476, 142 Ill. 233, 31 N. E. 591; McPherson v. Acme Lumber Co. 70 Miss. 649, 12 So. 857; Washington Ice Co. v. Webster, 125 U. S. 426, 31 L. ed. 799, 8 Sup. Ct. Rep. 947. From the Gibbs v. Bartlett Case, 2 Watts & S. 34, we quote: “It would be anything but an act of justice to permit a person who has wrongfully deprived another of his goods, and retained them in his possession until they were nearly destroyed by time and use, afterwards, when judgment was rendered against him .for his wrongful act, to save a forfeiture of the bond by an offer to return the article in its depreciated condition. Nor can the sureties be placed in any better situation than the principal.”
It is conceded that the question as to whether or not the machinery was in substantially the same condition and value in 1911 as it had been in 1905 was a question of fact for the jury, if a conflict in the evidence existed that would warrant reasonable minds in arriving at different conclusions upon the question. From an examination of the evidence, however, we have reached the conclusion that the undisputed evidence shows the machinery to be in a substantially different condition after the lapse of five years. True, there is some evidence that, owing to repairs made in 1906, the value of the machinery had not been depreciated, but there is no evidence that the machinery is in the same condition substantially as it was at the time it was rebonded by the defendants. The plaintiff was entitled to the rig in substantially the