Folmer v. Hanson

182 N.W. 633, 44 S.D. 122, 1921 S.D. LEXIS 59

• Court: South Dakota Supreme Court
• Decided: April 25, 1921
• Docket: File No. 4809
• Status: Published

Opinion

McCOY, J.

Action to recover on a bond given by defendant in a replevin action in which he was plaintiff, by virtue of which bond defendant, as such plaintiff, bound himself, in case of a judgment against him, to return said property to the defendant therein, plaintiff in the present action, or, in case a return thereof could not be had, that he would pay said defendant therein the value thereof. There was alternative judgment for defendant in the replevin action requiring plaintiff to return to said defendant the said property, or, in case a return thereof could not be had, that he have judgment against the plaintiff therein in the sum of $850. In this present action the plaintiff alleged that no part of said property, which was the subject-matter of the replevin action, had ever been returned, and that he was entitled, under the provisions of said bond, to a money judgment against defendant for the sum of $850, together with interest and costs. The defendants in this action made answer, admitting the execution and delivery of said bond and the rendition of said judgment, and affirmatively alleged that all said property required by said judgment to be returned had been returned to plaintiff by defendant. On the trial of this action, over the objections and exceptions of defendants, verdict was directed by the court in favor of plaintiff for the sum of $941.75, being the full amount of said $850, mentioned in the prior judgment, together with interest. From: the judgment based on said verdict the defendants appeal.

The assignments of error, in substance, are: First, that the evidence was insufficient to sustain said directed' verdict; second, that the evidence relating to the issue of whether or not the appellants had returned said property or a substantial part thereof was of such a nature as that the issue should have been submitted to and determined by a verdict of a jury.

[1] The evidence shows that after the time appellants claimed to have returned and redelivered said property to respondent a chattel mortgage thereon, given prior to the replevin suit, in favor of a third party, not a party to the suit, was foreclosed, and the said property sold and disposed of under said mortgage. It is the contention of appellants that respondent was not entitled, in this action, by reason of said mortgage, to recover the full value of $850 under the judgment in the replevin action; that respondent in this action should be entitled to recover, if at all, only the' value of his interest in sai'd mortgaged property over and; above the amount of the 'mortgage. We are of the opinion that the judgment in the replevin action is conclusive as to the value of respondent’s interest. The fact that the property was mortgaged, and that respondent only had 'an interest therein as to its value over and above the amount of the mortgage, might have been pleaded and tried out in the replevin action, and, as no such issue was presented therein,' the judgment in that action is final on the question of value.

[2] It appears from the evidence, on the cross-examination of respondent, that after the rendition of judgment in the replevin action the property, which consists of ' a threshing rig — separator, engine, and other accessories — was returned to' respondent. The respondent, in substance, testified:'

I have seen the property since;'part of it was in front of m} place. I told the men who brought it there where to leave it'. The separator and engine were brought to my place' and left in the road. I told them to leave it in the road;'that when they got it all together I would look it over, and if I was supposed to accept it, I wpuld accept' it; that the cook car was missing and the grates out of the engine. T refused to'feceivé the property; told them to leave it in-the road and I would look it over. The grates cost $36"; the cook car was worth about $100.

There was other testimony tending 'to show that respondent never, after the time said property was redelivered to him, and prior to this suit, notified appellants that he refused to accept the said property so returned to him.

[3] The rule of law applicable to the facts of this case seems to be that where the losing party in replevin, after judgment against him, in good faith returns the substantial part of the property taken, it is the duty of the prevailing party to accept such part and then bring suit on the bond for such damages as he may have sustained by reason of shortages and other depreciation in value caused by the losing party’s wrongful detention. Leeper, Graves & Co. v. Bank, 26 Okl. 707, 110 Pac. 655, 29 L. R. A. (N. S.) 747, Ann. Cas. 1912B, 302, and note. This rule seems to have been recognized in Schleuning v. West, 34 S. D. 356, 148 N. W. 604, although the facts of that case were held not to be within the rule. The rule seems to us to be the only one that will work out absolute justice between the parties under such circumstances. We are of the opinion" that there was sufficient evidence offered on the trial to require the court to submit to the jury, by proper instructions, the questions as to whether or not the appellants offered to, or did, in good faith, return the substantial part of said property, to the respondent; and whether the respondent did, or should have, accepted the same, and what were the damages sustained by respondent by reason of shortages or depreciation in value of the property, which said property was wrongfully in possession of said appellants by virtue of said bond.

For this reason, the judgment and order appealed from are reversed, and the cause remanded for new trial.