92 Neb. 354 | Neb. | 1912
Lead Opinion
This action was instituted in the district court for Webster county. It is alleged in the petition that on the 17th day of July, 1909, the Clark Implement Company, a corporation, commenced an action in that court against the plaintiff to recover the possession of certain specific personal property, which is shown to be a threshing machine and traction engine; that an order of delivery was issued, the property of the value of $2,000 taken, when a replevin bond in- the sum of $4,000 was duly executed by the plaintiff in the action; that upon the trial of said cause such proceedings were had as resulted in a finding in favor of the plaintiff in this action, assessing his damages at the sum of $404.50; that the right of property and of possession were in this plaintiff, which was of the value of $2,000; that judgment Avas rendered in favor of this plaintiff for the said sum of $404.50, with costs taxed at $121.60, and for a return of the property, or, in lieu of such return, the value thereof, to Avit, $2,000; that “defendant has not returned nor offered to return said property in the same, or substantially the same, condition in which it Avas taken, and no part of said judgment has been paid;” that “an execution was issued * * * on said judgment in favor of this plaintiff, which was returned Avholly unsatisfied.” The action is founded ón the replevin bond to recover the sum of $2,526.10, being the value of the property, damages, interest, and the costs of the former suit.
The defendants Cox and Boyd answered, admitting the averments of the petition as to the prior suit and the judgment rendered therein, but allege that, after the termina
Some objection is made to the above quoted part of the petition, and it is contended that the use of the word “substantially” so militates against the other averments as to render them ineffectual as an allegation that the property had not been returned. As we view the case, the objection is not of much importance, as there is no contention that the property was not returned. While it is admitted by plaintiff that the property Avas returned, it is insisted that it AAras not returned in the same condition as when taken from him under the Avrit, and that he refused to accept it. The theory upon AAdiich the case was tried by plaintiff Avas that the property Avas not returned within a reasonable time, and, when it was returned, it was in so badly damaged a condition as to relieve plaintiff from the duty of accepting it, and gave him the option of rejecting it and suing upon the bond for the value as found and adjudged on the trial of the replewin suit. It is contended by defendants that plaintiff has no option, but must receive the property, and could then sue for the difference in its value betAveen Avhat it was Avhen taken and at the time of the return. To the extent of submitting to the jury the question of the condition of the property when returned, the court adopted plaintiff’s Anew of the kvw. If the court Avas right in this, the language of the petition to which objection is made becomes unimportant.
The trial of the replevin case Avas had in November, 1909, the final judgment being rendered on the 1st day of December of that year. The action was commenced in
It is fundamental that, where a judgment in an action of replevin is against the plaintiff, it is his duty to return the property to the defendant within a reasonable time in substantially as good condition as Avhen taken, and this Avould satisfy the judgment in so far as the return had been ordered if the property Avas accepted by the defendant, but it Avould not cancel the money judgment for damages, nor would it deprive the defendant of his action for depreciation of the value of the property Avliile out of his possession. While this is all true, yet the duty of returning the property within a reasonable time and in substantially an unimpaired condition should be performed, and it does not lie with the plaintiff in the action, after long delay, to return property badly damaged by use or otherwise, compel the defendant to accept it, and then litigate the question of damages in another action. Our statute does not provide that the property shall be returned
Where the property is not returned, the plaintiff’s measure of damages is its value when taken under the writ, Avith legal interest -thereon from the date of the wrongful taking by the plaintiff in replevin, but, in that event, the successful defendant must be content Avith a recovery of the value at the time it Avas taken from him, with legal interest to the time of the trial, and he can have nothing further in the way of damages.
In Romberg v. Hughes, 18 Neb. 579, it is said, the late Judge Maxavell writing the opinion of the court: “It is only in cases where a return of the property is had that the party to whom the property is returned is entitled to damages for the detention. The rule alloAving the value of the use is peculiar to replevin, and grows out of the fact that the party to whom the property is awarded seeks to recover the property itself, and not its value. In such
Since the jury in the replevin suit found the value of the property in dispute to be $2,000, and upon which the judgment was rendered, and the same was not appealed from, that must be the limit of plaintiff’s recovery, with legal interest from the time the property Avas talcen under the writ.
The judgment of the district court will therefore be reversed and the cause remanded, unless the plaintiff within 60 days from the rendition of the order hereby made remits from the judgment the sum of $404.50 as of the date of the judgment in this case. If such remittitur is filed, the judgment of the district court for the sum of $2,121.60, with interest at 7 per cent, on $2,000 from the 19th day of July, 1909, will be affirmed, but at the costs of the appellee. The effect of the affirmance of the judgment in this case, as modified, will be a satisfaction of the judgment of December 2, 1909.
Affirmed.
Dissenting Opinion
dissenting.
This plaintiff refused to receive a return, of the property replevied. That refusal is the cause of this lawsuit. Was he justified in law in so refusing? That is the question to be ansAvered in the opinion.
1. I think the opinion construes the statute incorrectly, as hereinafter stated; but, even as the law is stated in the opinion, the petition and the evidence both failed to make a case for the plaintiff, because they did not allege or prove that there is any other or different damage to the property than that which the jury allowed in their ver
2. Section 191 of the code provides that when the property replevied has been delivered to the plaintiff, and the jury finds for the defendant, “they shall assess such damages as they think right and proper for the defendant.” Similar words, as to the damages to be allowed, are also found in section 190 of the code. Section 191a of the code, which was enacted in 1873, uses somewhat different phraseology, but there is no reason for supposing that the legislature intended thereby to change the law in regard to the measure of damages. If the property replevied is delivered to the plaintiff and the plaintiff has damaged the property in any way while so in his possession, there seems to be no doubt that the defendant may upon the
3. Again, it is said in the opinion that the petition al
4. It is said in the opinion that “the offered return could scarcely be said to be within a reasonable time.” There is no allegation in the petition that the return was unreasonably delayed, and there is no attempt in the evidence to sustain the action upon that ground. It is not mentioned in the brief. The judgment was entered in December, and the property was returned in the following February, less than two months. The defendant in this action testified that the roads were bad at that season of the year, and that it was returned as soon as the roads were passable. The plaintiff also testified that the property was returned as soon as the roads were good, and never at any time made any objection on account of the delay.
I think the judgment of the district court should be reversed.