Odell v. Hole

25 Ill. 204

• Court: Illinois Supreme Court
• Decided: November 15, 1860
• Status: Published

Opinion

Walker, J.

This was an action of debt on a penal bond, with conditions annexed. The jury returned a verdict for one hundred and seventy-five dollars, a part of the debt in the declaration mentioned, but failed to assess any damages. Upon this verdict the court below rendered judgment, and the assignment of errors questions its correctness. It has been uniformly held by this court, that in an action on a bond of this kind, the jury should find the amount of both the debt and damages. And upon such a verdict the court should render a judgment for the debt thus found, and award execution for that sum, with directions to be indorsed thereon, that the amount of the damages should be alone collected. Frazier v. Laughlin, 1 Gilm. 347; March v. Wright, 14 Ill. 248; Toles v. Cole, 11 Ill. 662. These cases are decisive of this question. The court therefore erred in rendering judgment on the verdict. The court permitted the plaintiff below, against the objection of the defendant, to give evidence to the jury, of the worth of the use of the mare as well as her depreciation in value, from the time she was replevied until her return. And by the third instruction, the jury are told, that the plaintiff was entitled to recover such damages as he may have sustained, by the depreciation in value which took place while the mare was in the possession of the defendant. In the action of replevin, the plaintiff may recover as damages the value of the use of the property, while it is detained from the plaintiff. And it is for the reason, that the defendant has wrongfully detained the plaintiff’s property, and deprived him of its use. But he has no right to recover, for the natural depreciation in value of this description of property, while in the possession of the defendant, although it may be otherwise with other descriptions of property which is incapable of such use, and is only held for sale. If, however, the depreciation has been produced by abuse or want of reasonable care on the part of the defendant, there can be no doubt but the plaintiff might recover for such depreciation. He is bound to take reasonable care of the property, and is liable for any default in performing that duty. This instruction should therefore have been modified so as to have announced this rule. The instruction as given, was calculated to mislead the jury, and the court erred in giving it as asked.

The judgment of the court below is reversed, and the cause remanded.

Judgment reversed.