Connor, J.
This action is here upon appeal from tbe judgment of tbe Superior Court of Forsyth County, remanding tbe action to tbe Forsyth County Court for a new trial. It was beard in tbe Superior Court upon appeal by plaintiffs from tbe judgment of tbe county court. Tbe judge of tbe Superior Court, exercising tbe appellate jurisdiction conferred upon that court by statute (see
Chemical Co. v. Turner, ante,
471), in deference to tbe suggestion made in tbe opinion by
Stacy, C. J.,
in
Smith v. Winston-Salem,
189 N. C., 178, in bis judgment has stated separately bis rulings upon plaintiff’s assignments of error, which resulted in tbe order for a new trial. He did not consider tbe remaining assignments of error appearing in tbe case on appeal. Having sustained tbe assignments of error considered by him, as stated in tbe judgment, and thereupon ordered a new trial, be did not deem it necessary to consider or pass upon tbe remaining assignments. Plaintiffs do not and cannot complain of this. They were successful upon their appeal from tbe county court, and in this Court ask that tbe judgment of tbe Superior Court be affirmed. This Court cannot consider or pass upon assignments of error made by plaintiffs in their appeal from tbe county court, which tbe Superior Court did not consider — it is limited to tbe consideration of assignments of error upon tbe trial in tbe county court sustained by tbe Superior Court and presented to this Court by exceptions duly taken by defendants, appellants, who ask that tbe judgment of tbe Superior Court be-reversed for errors assigned.
Defendants first assign as error tbe ruling of tbe judge of tbe Superior Court sustaining plaintiff’s exceptions to tbe refusal of tbe trial court to submit tbe issues tendered by plaintiff, and to tbe issues as submitted. This assignment of error cannot be sustained. Tbe refusal of tbe trial court to submit tbe issues tendered was error, as held by tbe judge of tbe Superior Court. This is an action to recover damages for breach of a bond. Tbe issues raised by tbe pleadings and determinative of plaintiff’s right to recover involve tbe execution of tbe bond, its breach and tbe damages sustained. Tbe ownership and right of possession of tbe automobile are not in issue upon tbe pleadings, in tbe sense that such ownership and right of possession are material to tbe cause of action
alleged in tbe complaint. It is true that the ownership of the automobile by plaintiffs at time of its seizure by the sheriff, under the writ of claim and delivery, issued upon the filing of the bond sued upon in this action, is a question of fact material to the determination of the amount of damages which plaintiffs may have sustained by a breach of the bond, as alleged in the complaint. Such ownership, however, is not determinative of the right of plaintiffs to recover in this action.
If the bond was executed by defendants and there was a breach thereof as alleged in the complaint, plaintiffs, although not the owners or entitled to the possession of the automobile at the time of its seizure, are entitled to recover at least nominal damages. 34 Cyc., 1585.
Alderman v. roesel,
(S. C.), 29 S. E., 385;
Little v. Bliss,
(Kan.), 39 Pac., 1025;
Smith v. Whiting,
100 Mass., 122.
If there was a breach of the bond as alleged in the complaint, such breach was a wrongful act, and the law infers or presumes damages arising therefrom to plaintiffs; if no actual or substantial damages are shown, the law gives nominal damages in order to determine and establish plaintiff’s right of action and thus affords a remedy for the wrong done to them by the defendants’ breach of the bond;
Bond v. Hilton,
47 N. C., 149;
Creech v. Creech,
98 N. C., 156;
Brunhild v. Potter,
107 N. C., 416;
Hutton v. Cook,
173 N. C., 496;
Cooper v. Clute,
174 N. C., 366. The allegations in the pleadings as to the ownership of the automobile are not material to plaintiff’s right to recover; the first issue submitted to the jury was not determinative of the cause of action set out in the complaint; it was therefore error to submit said issue over the objection of plaintiffs; and the judge of the Superior Court properly sustained the assignment of error based upon the exception thereto. C. S., 580 and cases cited.
Bank v. Broom Co.,
188 N. C., 508.
Defendants further assign as error the ruling of the judge of the Superior Court sustaining plaintiffs’ exception to the refusal of the trial court to give the instructions requested. See statement of case above. This assignment of error cannot be sustained. The ruling upon plaintiff’s exceptions was correct. The instructions requested should have been given upon the issue as to damages. If the plaintiffs were the owners and entitled to the possession of the automobile at the time it was taken from their possession by the sheriff, under the writ of claim and delivery, then upon a breach of the bond as alleged in the complaint, plaintiffs were entitled to recover of defendants the value of said automobile at the time of the seizure, as damages, if the same cannot now be returned by defendants. 34 Cyc., 1582 and cases cited.
Piffley v. Kendrick
(Ind.), 31 N. E., 40;
Little v. Bliss
(Kan.), 39 Pac., 1025;
Siebolt v. Konatz Saddlery Co.
(N. Dak.), 106 N. W., 564, 23 R. C. L., p. 916, sec. 81.
Upon tbe issue as to damages, if plaintiffs would recover more than nominal damages for tbe breach of tbe bond, as alleged, tbe burden is upon tbem to offer evidence from wbicb sucb damages may be assessed; tbe fact tbat tbe automobile was taken from tbeir possession is evidence of ownership by tbem; upon tbe judgment, dismissing tbe action, upon voluntary nonsuit, plaintiffs were entitled to an order of restitution; sucb order was not made, and defendant, John 0. "Wallace, has failed to return tbe automobile; nothing else appearing plaintiffs are entitled to recover of said defendant and tbe surety on bis bond, tbe value of said automobile when taken from tbeir possession, with interest as damages for detention. As an affirmative defense, defendants allege tbat at tbe time of tbe taking, John C. Wallace was tbe owner of said automobile, by virtue of a chattel mortgage executed to him by Leo W. Martin. Tbe burden is upon him to establish bis ownership under said mortgage as alleged by tbe greater weight of tbe evidence.
Speas v. Bank,
188 N. C., 524. Tbe damages in this action must be assessed upon the same principles and under tbe same rules as would have applied, if tbe damages bad
been
assessed in
the
action in wbicb
the writ
of claim and delivery was issued. 23 R. C. L., p. 916, sec. 81;
Washington Ice Co. v. Webster,
62 Me., 341, 16 Am. Rep., 462;
Lapp v. Ritter,
88 Fed., 108. Tbe question of ownership is material only in mitigation of damages, and not having been adjudicated in tbe former action, may in this action be considered by the jury in determining
the
amount of damages sustained by plaintiffs by breach of tbe bond. Plaintiffs are entitled to recover as actual damages only sucb sum as tbe jury may assess as compensation for loss sustained by breach of bond.
The action commenced by John C.
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Connor, J.
This action is here upon appeal from tbe judgment of tbe Superior Court of Forsyth County, remanding tbe action to tbe Forsyth County Court for a new trial. It was beard in tbe Superior Court upon appeal by plaintiffs from tbe judgment of tbe county court. Tbe judge of tbe Superior Court, exercising tbe appellate jurisdiction conferred upon that court by statute (see
Chemical Co. v. Turner, ante,
471), in deference to tbe suggestion made in tbe opinion by
Stacy, C. J.,
in
Smith v. Winston-Salem,
189 N. C., 178, in bis judgment has stated separately bis rulings upon plaintiff’s assignments of error, which resulted in tbe order for a new trial. He did not consider tbe remaining assignments of error appearing in tbe case on appeal. Having sustained tbe assignments of error considered by him, as stated in tbe judgment, and thereupon ordered a new trial, be did not deem it necessary to consider or pass upon tbe remaining assignments. Plaintiffs do not and cannot complain of this. They were successful upon their appeal from tbe county court, and in this Court ask that tbe judgment of tbe Superior Court be affirmed. This Court cannot consider or pass upon assignments of error made by plaintiffs in their appeal from tbe county court, which tbe Superior Court did not consider — it is limited to tbe consideration of assignments of error upon tbe trial in tbe county court sustained by tbe Superior Court and presented to this Court by exceptions duly taken by defendants, appellants, who ask that tbe judgment of tbe Superior Court be-reversed for errors assigned.
Defendants first assign as error tbe ruling of tbe judge of tbe Superior Court sustaining plaintiff’s exceptions to tbe refusal of tbe trial court to submit tbe issues tendered by plaintiff, and to tbe issues as submitted. This assignment of error cannot be sustained. Tbe refusal of tbe trial court to submit tbe issues tendered was error, as held by tbe judge of tbe Superior Court. This is an action to recover damages for breach of a bond. Tbe issues raised by tbe pleadings and determinative of plaintiff’s right to recover involve tbe execution of tbe bond, its breach and tbe damages sustained. Tbe ownership and right of possession of tbe automobile are not in issue upon tbe pleadings, in tbe sense that such ownership and right of possession are material to tbe cause of action
alleged in tbe complaint. It is true that the ownership of the automobile by plaintiffs at time of its seizure by the sheriff, under the writ of claim and delivery, issued upon the filing of the bond sued upon in this action, is a question of fact material to the determination of the amount of damages which plaintiffs may have sustained by a breach of the bond, as alleged in the complaint. Such ownership, however, is not determinative of the right of plaintiffs to recover in this action.
If the bond was executed by defendants and there was a breach thereof as alleged in the complaint, plaintiffs, although not the owners or entitled to the possession of the automobile at the time of its seizure, are entitled to recover at least nominal damages. 34 Cyc., 1585.
Alderman v. roesel,
(S. C.), 29 S. E., 385;
Little v. Bliss,
(Kan.), 39 Pac., 1025;
Smith v. Whiting,
100 Mass., 122.
If there was a breach of the bond as alleged in the complaint, such breach was a wrongful act, and the law infers or presumes damages arising therefrom to plaintiffs; if no actual or substantial damages are shown, the law gives nominal damages in order to determine and establish plaintiff’s right of action and thus affords a remedy for the wrong done to them by the defendants’ breach of the bond;
Bond v. Hilton,
47 N. C., 149;
Creech v. Creech,
98 N. C., 156;
Brunhild v. Potter,
107 N. C., 416;
Hutton v. Cook,
173 N. C., 496;
Cooper v. Clute,
174 N. C., 366. The allegations in the pleadings as to the ownership of the automobile are not material to plaintiff’s right to recover; the first issue submitted to the jury was not determinative of the cause of action set out in the complaint; it was therefore error to submit said issue over the objection of plaintiffs; and the judge of the Superior Court properly sustained the assignment of error based upon the exception thereto. C. S., 580 and cases cited.
Bank v. Broom Co.,
188 N. C., 508.
Defendants further assign as error the ruling of the judge of the Superior Court sustaining plaintiffs’ exception to the refusal of the trial court to give the instructions requested. See statement of case above. This assignment of error cannot be sustained. The ruling upon plaintiff’s exceptions was correct. The instructions requested should have been given upon the issue as to damages. If the plaintiffs were the owners and entitled to the possession of the automobile at the time it was taken from their possession by the sheriff, under the writ of claim and delivery, then upon a breach of the bond as alleged in the complaint, plaintiffs were entitled to recover of defendants the value of said automobile at the time of the seizure, as damages, if the same cannot now be returned by defendants. 34 Cyc., 1582 and cases cited.
Piffley v. Kendrick
(Ind.), 31 N. E., 40;
Little v. Bliss
(Kan.), 39 Pac., 1025;
Siebolt v. Konatz Saddlery Co.
(N. Dak.), 106 N. W., 564, 23 R. C. L., p. 916, sec. 81.
Upon tbe issue as to damages, if plaintiffs would recover more than nominal damages for tbe breach of tbe bond, as alleged, tbe burden is upon tbem to offer evidence from wbicb sucb damages may be assessed; tbe fact tbat tbe automobile was taken from tbeir possession is evidence of ownership by tbem; upon tbe judgment, dismissing tbe action, upon voluntary nonsuit, plaintiffs were entitled to an order of restitution; sucb order was not made, and defendant, John 0. "Wallace, has failed to return tbe automobile; nothing else appearing plaintiffs are entitled to recover of said defendant and tbe surety on bis bond, tbe value of said automobile when taken from tbeir possession, with interest as damages for detention. As an affirmative defense, defendants allege tbat at tbe time of tbe taking, John C. Wallace was tbe owner of said automobile, by virtue of a chattel mortgage executed to him by Leo W. Martin. Tbe burden is upon him to establish bis ownership under said mortgage as alleged by tbe greater weight of tbe evidence.
Speas v. Bank,
188 N. C., 524. Tbe damages in this action must be assessed upon the same principles and under tbe same rules as would have applied, if tbe damages bad
been
assessed in
the
action in wbicb
the writ
of claim and delivery was issued. 23 R. C. L., p. 916, sec. 81;
Washington Ice Co. v. Webster,
62 Me., 341, 16 Am. Rep., 462;
Lapp v. Ritter,
88 Fed., 108. Tbe question of ownership is material only in mitigation of damages, and not having been adjudicated in tbe former action, may in this action be considered by the jury in determining
the
amount of damages sustained by plaintiffs by breach of tbe bond. Plaintiffs are entitled to recover as actual damages only sucb sum as tbe jury may assess as compensation for loss sustained by breach of bond.
The action commenced by John C. Wallace to recover of Davis Brothers Company tbe automobile in tbeir possession, upon bis allegation of ownership, having been dismissed upon bis voluntary nonsuit, without an adjudication as to ownership, and without an order of restitution, Davis Brothers Company may maintain an independent action to recover of tbe principal, and bis surety, damages for tbe breach of. tbe bond.
Martin v. Rexford,
170 N. C., 540;
Mahoney v. Tyler,
136 N. C., 41;
Mfg. Co. v. Rhodes,
152 N. C., 637;
Manix v. Howard,
82 N. C., 125. Failure to prosecute tbe action in wbicb tbe property was taken from plaintiffs, under writ of claim and delivery, is a breach of tbe bond, entitling plaintiffs, to at least nominal damages. Failure to return tbe property to plaintiffs after judgment dismissing tbe action upon voluntary nonsuit, is a breach of tbe bond, and upon it appearing tbat tbe property cannot be returned, plaintiffs are entitled to recover of tbe principal and surety on tbe bond as actual damages, tbe value of tbe property, at tbe time of its seizure. Defendants, however, allege as an affirmative defense to tbe recovery of actual damages tbat tbe plaintiffs were not at tbe time
o£ its seizure, and are not now owners of tbe automobile, but that defendant, John C. Wallace, was tbe owner by virtue of a chattel mortgage executed by a third person. Tbe dismissal of tbe action, upon voluntary nonsuit was not conclusive as to tbe title to tbe automobile, and defendants may in this action offer evidence in support of their allegation, not to defeat plaintiffs’ action, but in mitigation of actual damages which they may recover.
Gilbert v. American Surety Co.,
121 Fed., 499, 61 L. R. A., 253. Tbe burden of establishing tbe truth of this allegation by tbe greater weight of tbe evidence, is upon defendants. Where, however, there has been an adjudication that the obligee in the bond, is the owner of the property, in a judgment by default and inquiry, such adjudication is conclusive, and neither the principal nor the surety may further controvert such ownership.
Garner v. Quakenbush,
188 N. C., 180.
Many interesting questions are discussed in the briefs filed in this Court. They are not, however, presented upon this appeal. Defendants’ assignments of error cannot be sustained, and the judgment remanding the action to Forsyth County Court for new trial is
Affirmed.