Yandle v. Kingsbury

17 Kan. 195

• Court: Supreme Court of Kansas
• Decided: July 15, 1876
• Status: Published

Opinions

The opinion of the court was delivered by

Kingman, C. J.:

This was an action of replevin, brought by defendant in error. The defendant (plaintiff in error) gave the required undertaking, and retained possession of the property. Two errors are alleged. The first is, that the court erred in refusing to set aside the order of delivery, because no action was commenced or pending at the time the motion to set aside the order was made. The condition of the case at the time was this: The petition was filed, and a summons and order of delivery were issued at the time. The summons was regular on its face, but the clerk indorsed thereon that the plaintiff claimed $200, and interest thereon. At the first term of court this indorsement was stricken from the summons, as irregular, and unauthorized, on plaintiff’s motion, who thereupon obtained leave for a new summons to issue. ' At this stage of the proceedings the motion to set aside the order of delivery was made, and refused — and we think correctly refused. The first summons was good. It was all that was necessary to bring the defendant into court. How far the indorsement thereon might have affected the extent of plaintiff’s right of recovery, had the defendant re-1 mained in default, we need not inquire. The indorsement, when stricken out,.did not invalidate the summons; nor did the issue of a new summons change the status of the case. The action was pending, because a petition had been filed, and a summons issued thereon.

The other question raised in the case is as to the measure of damages. The action was replevin. The defendant gave bond under §182 of the code, and retained possession of the property. The property consisted of a mule, a mare, a colt, and a set of harness. The jury found for the plaintiff, and found the mule worth $90, the mare $80, the colt $15, and the harness $15, (total, $200.) The colt had strayed away and come into possession of the plaintiff soon after the suit was instituted. The'court instructed the jury .that the plaint tiff, if entitled to a verdict, was entitled to recover as damages, “the actual worth of the use of the property, above the expense of keeping the same, from the time it was wrongfully detained by defendant.” The jury returned a verdict for five hundred dollars damages for the detention of the property. The large disproportion between the value of the property, as found by the jury, and the damages they returned, naturally raises the question as to whether the rule laid down by the district court is correct. The plaintiff in error claims that the only damages recoverable are, interest on the value of the property for the time it was wrongfully detained. It may be stated as a general rule in replevin, that such is the measure of damages; but though this is a general rule, it is by no means a universal one; and one of the most generally recognized exceptions is, where the property in controversy has a usable value. In such case, the owner’s damages are the loss of the use of the property for the time it is detained, and nothing less than this is a compensation for his injuries. In the casé of Allen v. Fox, 51 N. Y. 562, the learned judge delivering the opinion of the court has suggested a number of supposable cases where interest would be a grossly inadequate compensation; but in none of the cases that occurred to him would interest only as damages be such a mockery of the term as is presented in this case. From the record we learn that the mare and mule made a team, and the only one owned by defendant in error, and used by him for carrying on his farm; that on the 21st of May they were seized by the plaintiff in error without a pretext of ownership, and retained for sixteen months and seven days, until the final trial, plaintiff in error avowing that his object was to prevent the owner from making a crop, and thereby breaking him up, and compelling him to leave the neighborhood, saying to more than one witness' that he would only have to pay interest on the value of the property seized. For-this loss the plaintiff in error thinks that $18.96 (the interest at seven per cent, per annum on $200 for sixteen months and seven days,) would be an adequate compensation, as the defendant in error could have readily bought another team, as it was a species of property common in the country, and there was no difficulty in the defendant in error buying another team at a.reasonable price; and had he have done so, the only damage he would have sustained would have been the use of the money for the time. It might be an answer to this reasoning to say, that on the plaintiff in error’s own declaration, the owner could not buy another team as he was not able to do so, a condition of things not uncommon in a new country. "While this answer ought to be conclusive, so far as this plaintiff in error is concerned, it is not such an one as should be laid down as the basis of a rule; and a better one is at hand. The object of the plaintiff in replevin is the possession of his property. If he, succeeds in his suit, he is compelled to take the property, if the defendant so wills. Then the plaintiff has (if he has bought in the mean time) two teams, when he wants but one, while the defendant has had the use of one of them, by merely paying interest on the value of the property. This would not be compensation, which is the real object in damages, wherever damages are allowable at all. It is true, that general rules will not in all cases give adequate damages; but it is the object of the law to do so whenever such a result does not break down some settled rule of law.

The judgment of the court below will be affirmed.

"Valentine, J., concurring.