PARDEE, Circuit Judge,
after stating the case as above, delivered the opinion of the court.
The foregoing lengthy statement seems necessary in order to show the issues in the case, and the bearing of the instructions to the jury given and refused on the trial, which instructions are the basis of the errors assigned for review in this court.
On the trial before the court and the jury, the pivotal issue was whether W. M. Bering was so far the bailee or depositary of the attached goods that he could, for himself and the Davis Carriage Company, the bailor or depositor, maintain an action against the marshal levying the attachment to recover the goods or damages for their unlawful conversion. If he was such depositary, then we take it as clear that he had authority to file a claim bond under the statute, and recover the possession of which he had been deprived by the levy of the attachment, and his election so to do, carried into effect, concluded the Davis Carriage Company. It is substantially ad[669]*669mit ted that the 56 vehicles levied upon by the marshal at the suit of the Racine Wagon & Carriage Co. against J. B. Simpson were the property of the Davis Carriage Company, which property, at the time of the levy of the attachment, was in the exclusive possession of W. M. Bering.' It ought not to be necessary to cite authority to show that at common law, under these circumstances, either the Davis Carriage Company or W. M. Bering could have successfully maintained against the marshal making the levy au action to recover the goods in specie or for the full value of the goods converted; and it seems clear that, as there was only one trespass and one conversion, the marshal could not be liable to both the owner and the depositary for the full value of the goods.
In Story, Bailm. § 94, after discussing in the previous sections, at length, the question of the depositary’s rights as affected by his special property in the deposit, the learned author says:
“But whatever may be the true doctrine on this subject, whether that the depositary has a special property in the deposit, or not, there is no. doubt that not only lie, but the general owner, in virtue of Ills general ownership and right of possession, may also maintain a suit against a stranger, for an injury to it or conversion of it. Indeed, it is a. general rule that either the "bailor or the bailee may, in such a case, mainlain a suit for redress; and a recovery of damages by either of them will be a full satisfaction, and may be pleaded in bar of any subsequent suit by the other.”
Moak, TJnderh. Torts, p. 98, lays down this rule:
“Where the plaintiff is merely the possessory, but not the real, owner, he may. as against a third party, recover the entire value of the property; but, as against the real owner, only the value of his limited interest. Heydon and Smith's Case, 13 Coke, 68.”
And see 1 Dane, Abr. art. 9, c. 17; Cooley, Torts, p. 516 et seq.
The statutory remedy resorted to by Bering to recover possession of the goods is a substitute for the common-law action of replevin, and resort to it should bring practically the same results between tin* parties; and as we have seen that Bering, as the naked custodian, and even custodian against the consent of the Davis Carriage Company, could have maintained replevin at common law concluding the Davis Carriage Company, why should it not follow that Bering's successful resort to the statutory remedy also concludes the Davis Carriage Company? But this case need not he decided on such narrow ground. The undisputable evidence in the case shows that, by agreement, the relation between the Davis Carriage Company and Bering was that of bailor and bailee, with the understanding that Bering was to hold the goods for the company, and against all other persons. The carriage company’s secretary and only witness in regard thereto iterates and reiterates that when he (witness), in company with his attorney, and armed with sequestration papers, presented to Bering the order from Simpson for the delivery of the goods, he (Bering) accepted said order, and agreed “to hold all the Davis Carriage Company’s goods after that against any and all other persons, subject to whatever rights he himself might have in them,” and (witness) adds: “With this understanding and arrangement that he would hold them for us, I left the buggies in charge of W. M. Bering, to hold for the Davis Carriage Company,, [670]*670and did not sequester the goods or file the suit sequestering which had been previously prepared by my attorney Mr. Plowman, fór he had already drawn up the papers necessary to sequester these vehicles.” It is true that after his first deposition, and when testify-, ing to meet a special plea in the case, the same witness swears “that Mr. Bering had no authority from plaintiff to execute bond, affidavit, and claim for said stock of goods, nor to represent them in any manner whatever,” which, as a special fact as to authority, may have been within the province of the witness to swear to, but, as a conclusion of law arising on the facts of the case, it was exactly the question which was before the court and jury. As the undisputed evidence in the case shows that Bering was the bailee by agreement of the carriage company, it seems clear that Bering, as such bailee, had the right for himself and his bailor to maintain any proper action for the protection and preservation of the property, and, a fortiori, to make the claim bond under the statute in order to restore and protect his possession. Indeed, it seems to us too clear for argument that such a claim, under the understanding between Bering and the Davis Carriage Company, was absolutely necessary for Bering to carry out his agreement to hold the goods for the Davis Carriage Company against any and all other persons.
On the trial, the judge instructed the jury, over the objections of the plaintiff in error, as follows:
“If you believe, under the evidence, that Bering, when he gave that claim bond covering these goods, with others, was acting, so far as these goods were concerned, under due and sufficient authority from t.he plaintiff to include them to act for them as to these goods, and include their goods in that claim bond, and that such was his purpose in giving it, to represent and take care'of them for the plaintiff, then you will find for the defendants. If, on the other hand, you believe he did not have such authority; that the plaintiff never had clothed him with authority, nor Simpson ever did, nor any one else; that plaintiff never had clothed him with authority to act for them; that they did not intend, and he did not intend, that claimant’s bond should include these goods for them; that he had no authority to do it, — then you will find for plaintiff for the goods in controversy, and assess their value at what you think they were worth in Dallas at the time of taking them, as a lot of goods, and not the retail price, with six per cent, interest from the time of seizure to the present time.”
In the view we take of the case, this instruction was erroneous and misleading, in that the court submitted to the jury a question of mixed law and fact, as a pure question of fact, and without giving the law applicable thereto, and for the further reason that it practically instructed the jury that a special authority emanating from the Davis Carriage Company to W. M. Bering to make the claim and furnish bond was requisite, in order that the release of the goods under claimant’s bond should be conclusive as to the carriage company.
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PARDEE, Circuit Judge,
after stating the case as above, delivered the opinion of the court.
The foregoing lengthy statement seems necessary in order to show the issues in the case, and the bearing of the instructions to the jury given and refused on the trial, which instructions are the basis of the errors assigned for review in this court.
On the trial before the court and the jury, the pivotal issue was whether W. M. Bering was so far the bailee or depositary of the attached goods that he could, for himself and the Davis Carriage Company, the bailor or depositor, maintain an action against the marshal levying the attachment to recover the goods or damages for their unlawful conversion. If he was such depositary, then we take it as clear that he had authority to file a claim bond under the statute, and recover the possession of which he had been deprived by the levy of the attachment, and his election so to do, carried into effect, concluded the Davis Carriage Company. It is substantially ad[669]*669mit ted that the 56 vehicles levied upon by the marshal at the suit of the Racine Wagon & Carriage Co. against J. B. Simpson were the property of the Davis Carriage Company, which property, at the time of the levy of the attachment, was in the exclusive possession of W. M. Bering.' It ought not to be necessary to cite authority to show that at common law, under these circumstances, either the Davis Carriage Company or W. M. Bering could have successfully maintained against the marshal making the levy au action to recover the goods in specie or for the full value of the goods converted; and it seems clear that, as there was only one trespass and one conversion, the marshal could not be liable to both the owner and the depositary for the full value of the goods.
In Story, Bailm. § 94, after discussing in the previous sections, at length, the question of the depositary’s rights as affected by his special property in the deposit, the learned author says:
“But whatever may be the true doctrine on this subject, whether that the depositary has a special property in the deposit, or not, there is no. doubt that not only lie, but the general owner, in virtue of Ills general ownership and right of possession, may also maintain a suit against a stranger, for an injury to it or conversion of it. Indeed, it is a. general rule that either the "bailor or the bailee may, in such a case, mainlain a suit for redress; and a recovery of damages by either of them will be a full satisfaction, and may be pleaded in bar of any subsequent suit by the other.”
Moak, TJnderh. Torts, p. 98, lays down this rule:
“Where the plaintiff is merely the possessory, but not the real, owner, he may. as against a third party, recover the entire value of the property; but, as against the real owner, only the value of his limited interest. Heydon and Smith's Case, 13 Coke, 68.”
And see 1 Dane, Abr. art. 9, c. 17; Cooley, Torts, p. 516 et seq.
The statutory remedy resorted to by Bering to recover possession of the goods is a substitute for the common-law action of replevin, and resort to it should bring practically the same results between tin* parties; and as we have seen that Bering, as the naked custodian, and even custodian against the consent of the Davis Carriage Company, could have maintained replevin at common law concluding the Davis Carriage Company, why should it not follow that Bering's successful resort to the statutory remedy also concludes the Davis Carriage Company? But this case need not he decided on such narrow ground. The undisputable evidence in the case shows that, by agreement, the relation between the Davis Carriage Company and Bering was that of bailor and bailee, with the understanding that Bering was to hold the goods for the company, and against all other persons. The carriage company’s secretary and only witness in regard thereto iterates and reiterates that when he (witness), in company with his attorney, and armed with sequestration papers, presented to Bering the order from Simpson for the delivery of the goods, he (Bering) accepted said order, and agreed “to hold all the Davis Carriage Company’s goods after that against any and all other persons, subject to whatever rights he himself might have in them,” and (witness) adds: “With this understanding and arrangement that he would hold them for us, I left the buggies in charge of W. M. Bering, to hold for the Davis Carriage Company,, [670]*670and did not sequester the goods or file the suit sequestering which had been previously prepared by my attorney Mr. Plowman, fór he had already drawn up the papers necessary to sequester these vehicles.” It is true that after his first deposition, and when testify-, ing to meet a special plea in the case, the same witness swears “that Mr. Bering had no authority from plaintiff to execute bond, affidavit, and claim for said stock of goods, nor to represent them in any manner whatever,” which, as a special fact as to authority, may have been within the province of the witness to swear to, but, as a conclusion of law arising on the facts of the case, it was exactly the question which was before the court and jury. As the undisputed evidence in the case shows that Bering was the bailee by agreement of the carriage company, it seems clear that Bering, as such bailee, had the right for himself and his bailor to maintain any proper action for the protection and preservation of the property, and, a fortiori, to make the claim bond under the statute in order to restore and protect his possession. Indeed, it seems to us too clear for argument that such a claim, under the understanding between Bering and the Davis Carriage Company, was absolutely necessary for Bering to carry out his agreement to hold the goods for the Davis Carriage Company against any and all other persons.
On the trial, the judge instructed the jury, over the objections of the plaintiff in error, as follows:
“If you believe, under the evidence, that Bering, when he gave that claim bond covering these goods, with others, was acting, so far as these goods were concerned, under due and sufficient authority from t.he plaintiff to include them to act for them as to these goods, and include their goods in that claim bond, and that such was his purpose in giving it, to represent and take care'of them for the plaintiff, then you will find for the defendants. If, on the other hand, you believe he did not have such authority; that the plaintiff never had clothed him with authority, nor Simpson ever did, nor any one else; that plaintiff never had clothed him with authority to act for them; that they did not intend, and he did not intend, that claimant’s bond should include these goods for them; that he had no authority to do it, — then you will find for plaintiff for the goods in controversy, and assess their value at what you think they were worth in Dallas at the time of taking them, as a lot of goods, and not the retail price, with six per cent, interest from the time of seizure to the present time.”
In the view we take of the case, this instruction was erroneous and misleading, in that the court submitted to the jury a question of mixed law and fact, as a pure question of fact, and without giving the law applicable thereto, and for the further reason that it practically instructed the jury that a special authority emanating from the Davis Carriage Company to W. M. Bering to make the claim and furnish bond was requisite, in order that the release of the goods under claimant’s bond should be conclusive as to the carriage company.
At the same time, the, plaintiff in error requested the court to charge the jury as follows:
“The jury are instructed: That after Burrows made his demand of the goods in controversy from Simpson, that Simpson gave him an order on Bering for the goods, which Burrows afterwards presented; and Bering, upon the presentation to him of said order, agreed with said Burrows to keep said goods for the plaintiff, and to protect the same against every person, [671]*671subject, however, to any claim which he (Bering) had upon the same on account of the contract which he had made with Simpson to purchase the stock of goods in which the buggies in controversy were contained; and Burrows at the time was satisfied to allow the goods claimed by the plaintiff to remain in the possession of Bering with that agreement and understanding, and did allow the same to remain In his (Bering’s) possession under said agreement; and that afterwards the same were levied upon by the defendant Geo. A. Knight, under a writ of attachment issued out of this court iu favor of the Racine Wagon & Carriage Co., against Jas. B. Simpson; and after the levy of said writ the said Bering filed his affidavit and claimant’s bond, claiming the goods in controversy with other goods, and said defendant Knight approved said bond, and delivered said goods to said Bering. That Bering had the right to claim said goods in the manner in which he did claim the same, and to recover the custody thereof, and, when he did so. alone was responsible to the plaintiff for said goods, or the value thereof, and the defendants herein are not liable for the same; and the jury will find their verdict for the defendants.”
This instruction the court refused, and the plaintiff in error duly excepted, and in this court such refusal is assigned as error. The charge requested is substantially a request to instruct: the jury on the undisputed evidence in the case to find for the defendants. It would have been better practice to have thus simplified the request. At the same time, we are of opinion, and for the reasons hereinbefore given, that the charge as requested should have been given, for the facts stated therein all appear by the undisputed evidence, and the conclusion legally follows.
At the request of the defendant in error, the court charged the jury as follows:
••You are further charged that. If the property in question belonged to Davis Carriage Company, it matters not in whose hands said property was at the time of 1he seizure. It is a principle of law that, where one has the right to property, this draws the right of possession. . And you are charged that if the goods were held without right by Bering, and that the marshal wrongfully levied upon them, and thereby converts them, then you are charged that Davis Carriage Company could maintain an action for damages against said marshal for conversion; and if you find that plaintiff had «he right to this property, although It was in the hands of Bering, and if you find that the marshal levied upon said property as the property of .1. B. Simpson, then you will find for plaintiff'the value of said property, with six per cent, interest from the date of said levy.”
This charge was duly excepted to, and constitutes the third assignment of error. It was clearly erroneous and misleading, because, while the abstract principles of law therein declared may be correct, yet, without qualification, they were wholly inapplicable to the vital' issues in the case.
The fourth assignment of error is that the court erred in using the following language in the charge to the jury:
‘■That the measure of damages was ihe value of the goods at Dallas at the time of the seizure in the condition in which they were, and as a lot of goods in hulk, and not at retail price, with six per cent, interest on said value from the time of the seizure.”
This assignment is not pressed in this court, and, even if it were, we see no objection to the rule of damages therein declared.
The remaining assignments of error need uot be considered. The judgment: of the circuit court is reversed, and the cause is remanded, with instructions to award a new trial.