Comstock, P. J.
Appellees sought to recover on two replevin bonds executed by the appellants in the months of July and October, 1904. Upon the execution of the bonds and the issuance of a writ of replevin the sheriff of Warrick county delivered to appellant Lindsey certain property, to wit, 102 shocks of wheat, 800 pounds of tobacco and 180 bushels of corn. The cause was put at issue and a trial had resulting in a verdict for $224.95, $24.95 of which was remitted, and a judgment rendered for $200. Each of said bonds was conditioned that appellant Lindsey would prosecute his action with effect and without delay, and return said property to appellees, if return should be adjudged by the court, and that he would pay to appellees all sums of money which might be recovered in the action.
In the replevin proceedings, the Superior Court of Vanderburgh County, in March, 1905, adjudged that the appellees were the owners, and entitled to the possession, of the property described in the complaint and heretofore set out; that they have the return of the same, and that appellees recover from appellant Lindsey their costs in said cause [575]*575paid out and expended, but did not find or adjudge that the property was of any value.
1. While numerous errors are assigned, the only one discussed — and under the rules the others are waived —is the overruling of appellants’ motion for a new trial.
Of the reasons for a new trial argued, we deem it necessary only to consider: (1) Whether an- action on the bond may be maintained for the value of the property, although the jury in the trial of the action failed to find the value thereof, where judgment for return was awarded to the defendant; (2) whether the court erred in giving to the jury instructions one and two of its own motion and in refusing to give instructions one and two requested by appellants.
2. The controversy is over these questions presented in various forms. The record presents a valid bond and the conditions broken. The breach is the failure to return the property. The right of action on the bond carries with it the right of damages for failing to perform its conditions.
3. Sections 575, 599 Burns 1908, §§549, 572 R. S. 1881, require that in actions for replevin the jury must assess the value of the property and the damages for the taking or detention thereof. Whenever, by their verdict, there will be a judgment for the recovery or return of the property, the judgment may be in the alternative for such return or the value thereof in case a return cannot be had.
4. Where the plaintiff is in possession of the property, and the defendant recovers judgment for its return, but the value of the property is not found, the defendant may still have his action on the bond .to recover the value of the property. Yelton v. Slinkard (1882), 85 Ind. 191; Whitney v. Lehmer (1866), 26 Ind. 503.
[576]*576This holding is upon the ground, that the right of action arises by the common law out of a breach of the contract, and, the statute giving a remedy without negative words, the common-law remedy still remains, and may be pursued at the plaintiff’s option. In the case last named the court, at page 506, say: “An assessment of the value of the property in the replevin suit, and a judgment in the alternative for its return or its value, would, as evidence, undoubtedly have bound the parties upon the question of value, for the reason that it would have been a judicial determination of that question by a tribunal having that authority, putting it at rest forever. But it does not follow that the absence of such assessment and judgment shall have the practical effect of a finding and judgment that the property was of no value, or that no othér tribunal shall examine the question. Common justice, as well as reason, would be shocked by the announcement of such a doctrine. ’ ’
The foregoing are the only Indiana eases passing upon the precise question here involved. In other jurisdictions, under statutes substantially like ours, the qrrestion has been decided the same way. Gardiner v. McDermott (1878), 12 R. I. 206; Pierce v. King (1884), 14 R. I. 611; Myers v. Dixon (1902), 106 Ill. App. 322; Washington Ice Co. v. Webster (1888), 125 U. S. 426, 8 Sup. Ct. 947, 31 L. Ed. 799; Washington Ice Co. v. Webster (1873), 62 Me. 341, 16 Am. Rep. 462 Balsley v. Hoffman (1850), 13 Pa. St. 603; Pittsburgh Nat. Bank, etc., v. Hall (1884), 107 Pa. St. 583, 588, 589; Sweeney v. Lomme (1874), 22 Wall. (U. S.) 208, 22 L. Ed. 727; Leighton v. Brown (1868), 98 Mass. 515, 516.
In the case last named, in which the action was upon a replevin bond, plaintiff had possession of the property, and judgment was for a return, the court say: “The breach assigned is the failure of the principal defendant, as plaintiff in the replevin suit, to comply with the order to return the property replevied, which was a part of the final judgment in that action. Damages for that breach must be the [577]*577value of the property replevied. In ascertaining the value of the (property) which was taken by the replevin writ and which the principal defendant now fails to restore, the leading principle is, that the party who has been deprived of his property is entitled as far as possible to complete indemnity.”
5. It is universally held that matters litigated in the replevin suit cannot be retried in the suit on the bond, and it will be presumed that all matters that might have been, were litigated. Jackson v. Morgan (1906), 167 Ind. 528.
6. It appears that the costs were adjudicated. This is a final settlement as to them. It also appears that there was no adjudication as to the value of the property. The failure to adjudicate the value of the property is a? justly chargeable to appellants as to appellees.
7. Appellants, having failed to assert the right then, cannot be heard to object now to the adjudication of the value of the-property. They, should not be permitted, by disregarding the order of the court, and failing to return the property, to injure the adversary party and thus benefit themselves.
8. The instructions in question related to the measure of damages. Those given told the jury that the measure of damages was the market value of the property at plaintiffs ’ farm at the time of the trial of the replevin action when judgment was rendered for the return of the property, less the reasonable charge for labor and care thereon in preparing the same for market, with six per cent interest from date of such judgment (March 24, 1905) until time of the ‘trial.
9. The first instruction refused charged that the plaintiffs were entitled to recover the value of the articles replevied, and that all questions, except as to the value of the articles,'were adjudicated in the replevin action. The second instruction refused fixed the damages [578]
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Comstock, P. J.
Appellees sought to recover on two replevin bonds executed by the appellants in the months of July and October, 1904. Upon the execution of the bonds and the issuance of a writ of replevin the sheriff of Warrick county delivered to appellant Lindsey certain property, to wit, 102 shocks of wheat, 800 pounds of tobacco and 180 bushels of corn. The cause was put at issue and a trial had resulting in a verdict for $224.95, $24.95 of which was remitted, and a judgment rendered for $200. Each of said bonds was conditioned that appellant Lindsey would prosecute his action with effect and without delay, and return said property to appellees, if return should be adjudged by the court, and that he would pay to appellees all sums of money which might be recovered in the action.
In the replevin proceedings, the Superior Court of Vanderburgh County, in March, 1905, adjudged that the appellees were the owners, and entitled to the possession, of the property described in the complaint and heretofore set out; that they have the return of the same, and that appellees recover from appellant Lindsey their costs in said cause [575]*575paid out and expended, but did not find or adjudge that the property was of any value.
1. While numerous errors are assigned, the only one discussed — and under the rules the others are waived —is the overruling of appellants’ motion for a new trial.
Of the reasons for a new trial argued, we deem it necessary only to consider: (1) Whether an- action on the bond may be maintained for the value of the property, although the jury in the trial of the action failed to find the value thereof, where judgment for return was awarded to the defendant; (2) whether the court erred in giving to the jury instructions one and two of its own motion and in refusing to give instructions one and two requested by appellants.
2. The controversy is over these questions presented in various forms. The record presents a valid bond and the conditions broken. The breach is the failure to return the property. The right of action on the bond carries with it the right of damages for failing to perform its conditions.
3. Sections 575, 599 Burns 1908, §§549, 572 R. S. 1881, require that in actions for replevin the jury must assess the value of the property and the damages for the taking or detention thereof. Whenever, by their verdict, there will be a judgment for the recovery or return of the property, the judgment may be in the alternative for such return or the value thereof in case a return cannot be had.
4. Where the plaintiff is in possession of the property, and the defendant recovers judgment for its return, but the value of the property is not found, the defendant may still have his action on the bond .to recover the value of the property. Yelton v. Slinkard (1882), 85 Ind. 191; Whitney v. Lehmer (1866), 26 Ind. 503.
[576]*576This holding is upon the ground, that the right of action arises by the common law out of a breach of the contract, and, the statute giving a remedy without negative words, the common-law remedy still remains, and may be pursued at the plaintiff’s option. In the case last named the court, at page 506, say: “An assessment of the value of the property in the replevin suit, and a judgment in the alternative for its return or its value, would, as evidence, undoubtedly have bound the parties upon the question of value, for the reason that it would have been a judicial determination of that question by a tribunal having that authority, putting it at rest forever. But it does not follow that the absence of such assessment and judgment shall have the practical effect of a finding and judgment that the property was of no value, or that no othér tribunal shall examine the question. Common justice, as well as reason, would be shocked by the announcement of such a doctrine. ’ ’
The foregoing are the only Indiana eases passing upon the precise question here involved. In other jurisdictions, under statutes substantially like ours, the qrrestion has been decided the same way. Gardiner v. McDermott (1878), 12 R. I. 206; Pierce v. King (1884), 14 R. I. 611; Myers v. Dixon (1902), 106 Ill. App. 322; Washington Ice Co. v. Webster (1888), 125 U. S. 426, 8 Sup. Ct. 947, 31 L. Ed. 799; Washington Ice Co. v. Webster (1873), 62 Me. 341, 16 Am. Rep. 462 Balsley v. Hoffman (1850), 13 Pa. St. 603; Pittsburgh Nat. Bank, etc., v. Hall (1884), 107 Pa. St. 583, 588, 589; Sweeney v. Lomme (1874), 22 Wall. (U. S.) 208, 22 L. Ed. 727; Leighton v. Brown (1868), 98 Mass. 515, 516.
In the case last named, in which the action was upon a replevin bond, plaintiff had possession of the property, and judgment was for a return, the court say: “The breach assigned is the failure of the principal defendant, as plaintiff in the replevin suit, to comply with the order to return the property replevied, which was a part of the final judgment in that action. Damages for that breach must be the [577]*577value of the property replevied. In ascertaining the value of the (property) which was taken by the replevin writ and which the principal defendant now fails to restore, the leading principle is, that the party who has been deprived of his property is entitled as far as possible to complete indemnity.”
5. It is universally held that matters litigated in the replevin suit cannot be retried in the suit on the bond, and it will be presumed that all matters that might have been, were litigated. Jackson v. Morgan (1906), 167 Ind. 528.
6. It appears that the costs were adjudicated. This is a final settlement as to them. It also appears that there was no adjudication as to the value of the property. The failure to adjudicate the value of the property is a? justly chargeable to appellants as to appellees.
7. Appellants, having failed to assert the right then, cannot be heard to object now to the adjudication of the value of the-property. They, should not be permitted, by disregarding the order of the court, and failing to return the property, to injure the adversary party and thus benefit themselves.
8. The instructions in question related to the measure of damages. Those given told the jury that the measure of damages was the market value of the property at plaintiffs ’ farm at the time of the trial of the replevin action when judgment was rendered for the return of the property, less the reasonable charge for labor and care thereon in preparing the same for market, with six per cent interest from date of such judgment (March 24, 1905) until time of the ‘trial.
9. The first instruction refused charged that the plaintiffs were entitled to recover the value of the articles replevied, and that all questions, except as to the value of the articles,'were adjudicated in the replevin action. The second instruction refused fixed the damages [578]*578at the value of the articles in their condition and location at the time the replevin action was instituted and the property taken by virtue thereof, with six per cent interest to this time.
In the event of a depreciation in the value after the taking and before the judgment of return this rule ought to apply as' shown by the decisions hereinafter given. The position of appellants with reference to the action of the court as to these instructions is not well founded. It is the general rule, for the purpose of recovery in an action on a bond or undertaking, that the value of the property be estimated as of the time of the judgment for its return with interest thereon to the time of the trial. Swift v. Barnes (1834), 16 Pick. (Mass.) 194, 196, 197; Caldwell v. West (1848), 21 N. J. L. 411, 416, 417; Peacock v. Haney (1874), 37 N. J. L. 179, 181; Western Mortgage, etc., Co. v. Shelton (1894), 8 Tex. Civ. App. 550; Talcott v. Rose (1901), (Tex. Civ. App.), 64 S. W. 1009; Walls v. Johnson (1861), 16 Ind. 374; Hopkins v. Ladd (1864), 35 Ill. 178.
In Yelton v. Slinkard, supra, it is said, at page 194: “If the property has been entirely destroyed, so that a return could not be had, the measure of damages would be the value of the property, at least.” In this connection, see, also, Whitney v. Lehmer, supra. Peters Box, etc., Co. v. Lesh (1889), 119 Ind. 98, and other Indiana cases cited by appellants are not necessarily in conflict with the foregoing Indiana eases.
It has been held that, if the value of the property was greater at the time of the order for its return than at the time it was taken under the replevin writ, the defendant in replevin is entitled to recover in an action upon the bond the value at the time of the order for its return. Treman v. Morris (1881), 9 Ill. App. 237; Leighton v. Brown, supra.
If, pending the action of replevin, and before the rendition of the judgment for the return of the property, the property [579]*579has depreciated in value through the fault of plaintiff in replevin, the defendant has been held entitled to recover for its nonreturn, its value at the time it was taken under the replevin writ. Bradley v. Reynolds (1892), 61 Conn. 271, 284-286.
In Page v. Fowler (1870), 39 Cal. 412, 426, in which the question before us is ably considered, and in which many cases are cited and commented upon, the court sa'y: “In other words, the rule deducible from the authorities is, that in caseé affecting property of a fluctuating value, where exemplary damages are not allowed, the correct measure of damages, is the highest market value within a reasonable time after the property was taken, with interest computed from the time- such value was estimated. This is, in effect, the rule established in Scott v. Roger [1864], 31 N. Y. 676, where the precise question was more elaborately discussed than in any other case. ’ ’
10. The courts take judicial notice that wheat, corn and tobacco have fluctuating values. The rule stated by the trial court, giving to appellees the valúe of the property from the time they were awarded its return with interest until the trial upon the bond, is amply supported by authority and was favorable to appellants.
Appellants insist that the judgment is excessive. The verdict returned was for $224.95. • The court upon hearing the argument upon the motion for a new trial — excessive verdict being one of the reasons therefor — required appellees to remit $24.95, which was done and judgment rendered for $200.
11. The attention of the trial court was called to this claim as to the amount of the verdict. The question therefore came directly under review by the trial court. There was some conflict in the evidence as to the value of the articles, but the trial court was manifestly clear that the judgment for $200 was warranted by the evidence, [580]*580and, looking at the record, we cannot say that this verdict was not sustained by the evidence.
Judgment affirmed.