Cumberland Coal & Iron Co. v. Tilghman

In Maryland the action of replevin is most generally resorted to, for the purpose of trying the right of possession at the’time the writ issued, and not to determine necessarily the absolute title to the property for all time. Whoever is entitled to the possession at the time the writ issued, may maintain or defeat the action of replevin, and his title to damages must be confined to the extent of the interference with that possession. In an action of replevin, which was tried on issues to the pleas of non cepit and property in the defendant, the verdict and judgment on both issues were in favor of the defendant, who then brought suit on the replevin bond for damages. Held: 1st. That the defendant, in the suit on the bond, could not show, in mitigation of damages, that the title to the property was in himself, for this was decided in the replevin suit. 2nd. But he could show that, although the defendant in the replevin suit had title to the property at the time the judgment was rendered in his favor, yet that title was but of short duration, and terminated by contract in a short time after that judgment. In an action for damages on a replevin bond, it was uénitted, that on the trial of the replevin suit, the plaintiff offered evidence to show title in himself, and the defendant offered evidence of title in himself, and that the verdict was found in favor of the defendant, on the issue joined. Held: 1st. That this admission relieves the plaintiff in the action on the bond, from either pleading the record in the replevin suit, specially as an estoppel, or the jury from finding its existence on the testimony, for what is admitted need not be proved. 2nd. The same word, “title,” having been used both in this admission, and in the plaintiff's offer of evidence in the suit on the bond, it must be understood as importing the same thing, and whatever title was designed to he proved in the suit on the bond, must be considered as settled by the replevin suit. Where the court below had granted an instruction, in regard to the standard of damages, it is no error for it to refuse another instruction, setting up another standard inconsistent with that established by the prayer already granted.

Appeal from the Circuit Court for Allegany county. This action was brought on the 11th of August 1857, by the appellee against the appellants upon a replevin bond. On the 17th of July 1855, the Cumberland Coal and Iron Company sued out a writ of replevin, and gave the usual bond, with Jonathan W. Magruder as security on it, to Margaret Tilghman. In this replevin suit, the defendant, Margaret Tilghman, pleaded non cepit and property in herself, and the plaintiff, the Cumberland Coal and Iron Company, joined issue on the first plea, and to the second replied property in itself. At the trial both issues were found for the defendant, and judgment for the return of the property and for costs, was rendered on the 15th of April 1857. The property taken was a canal boat called “The Anna Woodward,” which was replevied and delivered to the company on the day the writ of replevin was issued, and has remained in the company’s possession to the time of the present suit. In the present action the plaintiff, Margaret Tilghman, declared on the replevin bond above mentioned, assigning as breaches thereof, “that the said Cumberland Coal and Iron Company, did not prosecute the said writ of replevin with effect, against the plaintiff, and did not well and truly return and deliver unto the plaintiff the said property so replevied, and did not pay to the plaintiff the damages caused by the taking, use and detention of said canal boat from the plaintiff, and hath not paid the said costs.” The defendants pleaded, 1st, general performance; 2nd, “(hat the plaintiff from the tiraje of making of the writing obligatory aforesaid, hitherto hath not been damnified in respect of or by reason of any matter, cause or thing, in the condition of the writing obligatory aforesaid mentioned.” On these pleas issues were joined. lsi Exception. The plaintiff to support the issue on her part joined, offered in evidence the replevin bond, the execution of which was admitted; and the record and docket entries in the replevin suit mentioned in the condition of the bond, and also gave evidence of the value of the boat at the time of the replevin. It was then admitted, that on the trial of said replevin suit, the plaintiff offered evidence to shoio title in itself, and the defendant offered evidence of title in herself, and that the verdict was found in favor of the defendant on the issues joined. The defendants then, to support the issues on their part joined, and for the .purpose only of mitigating the damages in this case, offered to prove by competent and proper evidence, that at the time said boat was replevied the .title thereto was in the company, and so continued in said company to the present time. To the admissibility of which evidence, the plaintiff, by her counsel, objected, upon the ground that the company was precluded by the verdict and judgment in the replevin suit, from showing any of the facts above offered to be proved; which objection the court (Perry, J.,) sustained, and to this ruling the defendants excepted. 2nd Exception. The plaintiff, in addition to the evidence offered in the first exception, offered in evidence the depositions of Atkinson and Sprigg, which were used in the replevin suit, and proved by Robert S. McKaig, that he had testified in the replevin suit, that, in March 1854, he purchased the boat for Margaret Tilghman; that after the boat had been delivered to him by Sprigg, under the contract, he understood that the Cumberland Coal and Iron Company had a claim on the boat, and he and Sprigg called on Henderson the company’s agent and had a conversation with him on the subject; that Henderson claimed there was still due by Sprigg to the company, on the sale of the boat to Sprigg by the company, $124 or $134; that Sprigg denied he owed any thing on the boat, but it was agreed, at that conversation, that Margaret Tilghman should keep the boat, and that witness, as her agent, should pay the company $100, part, of the $124; and that Sprigg should pay the balance of the $124 out of the earnings of another boat, and this arrangement was made to discharge the boat for Miss Tilghman, who was to hold the boat as her own; and that witness paid the $100, by leaving that much of the freight of the first load of the boat thereafter in the hands of the company; and that Sprigg so paid the $24 to the company. The defendants then offered to prove by Henderson and other competent witnesses, that the boat before and in the spring of 1854, was the property of the Cumberland Coal and Iron Company; and that in the spring of 1853 the company had made a contract with Sprigg, by which it was agreed he should take this boat and two others and run them on the canal in carrying coal for the company, and that the company, to pay for them, was to retain in its hands twenty cents per ton out of the freight money, as purchase money paid on the boats, and that the boats were to remain the property of the company till paid for; that Sprigg had a right by this contract to apply the twenty cents per ton earned by all the boats, to the payment of one, due regard being had to the condition of the others, and that the boat in question had been taken by Sprigg under this contract at $936,67, which was the principal sum, and that the twenty cents per ton were to be credited as earned, charging interest on the price of the boat from credit to credit until paid for in full, and that this boat was not paid for in the spring of 1854, and at the time of the alleged sale to McKaig; that Henderson never assented to a sale of the boat to McKaig by Sprigg, and that in a conversation had with McKaig and Sprigg, in the spring of 1854, at the place stated by them, he, Henderson, did not assent to such sale, but on the contrary communicated to McKaig the contract with Sprigg, and that the boat was not paid for, and that he would not consent to such sale to McKaig as the agent of the plaintiff; and also to prove that the amount due on the boat in the spring of 1854, at the time of said alleged sale, was. after giving all credits to which Sprigg was entitled under his contract, $347,87; and that no such sum of $124 or $134, was ever agreed to or stated by Henderson, or in his presence, with McKaig or Sprigg; and that no such sum of $100, or any thing like it, was paid, nor any such sum of $24 paid by Sprigg. To the admissibility of which evidence and every part thereof, the plaintiff, by her counsel, objected, and stated as her objection, that the said evidence was inadmissible upon the ground, that the verdict and judgment in the replevin suit between the present plaintiff and one of the present defendants, the company, estopped the defendants from showing, even in this action, for any purpose, that the title to said property was in the company at the time of said trial, or give such evidence in mitigation of damages; which objection to said evidence and to every part thereof the court sustained, and refused to permit the defendants to offer said evidence or any part thereof to the jury, and to this ruling the defendants excepted. . 3rd Exception. The defendants asked the court to instruct the jury, that if they find from the evidence that the company replevied the boat from the plaintiff, on the 17th of July 1855, and that a judgment on verdict in said replevin suit de retorno habendo was rendered, on the 14th of April 1857, in favor of the plaintiff, and that the company, upon the rendition of this judgment, returned the boat to the plaintiff, and if thejr further find, that the boat was in possession of the company from the time she was replevied until she was returned as aforesaid, and was used by the company in boating coal from Cumberland to Alexandria, and that she was built for that purpose, and would have been used by the plaintiff, in the same manner if she had not been replevied; and if they further find that it was more beneficial so to use the boat than to let her remain idle, and that the boat, even if she had remained in possession of the plaintiff during said period, would have deteriorated by natural decay and advance in age, over and above all other deterioration, that then the rule of damages in this case should be, the value of the boat at the time said replevin was executed, with the interest thereon from that time, reduced by the amount of the value of the said boat when returned to the plaintiff, in so far as said last value was produced by other causes than natural decay and advance in age; and that the jury in estimating the difference between the value of the boat when replevied, and when returned, shall not take into their consideration the deterioration caused by such natural decay or advance in age, as would have accrued to said boat under all circumstances, and the costs of the replevin suit. This instruction the court refused to give, and to this ruling the defendants excepted. In an exception, which was taken by the plaintiff, the court had, at the instance of the defendants, instructed the jury, “that the rule of damages in this suit, is the value of said boat at the time said replevin was executed, with the interest thereon from that time, reduced by the amount of the value of said boat when returned to the plaintiff, with the cost of the replevin suit,” provided they found that the boat was replevied, and the judgment in the replevin suit, and the return of the boat to the plaintiff, as stated in the preceding prayer. The verdict was in favor of the plaintiff for $836,78, damages and costs, and from the judgment thereon the defendants appealed.