Aber v. Bratton

• Decision Date: 08 April 1886
• Citation: 27 N.W. 564,60 Mich. 357
• Court: Michigan Supreme Court
• Parties: ABER v. BRATTON.

27 N.W. 564

60 Mich. 357

ABER v. BRATTON.

Supreme Court of Michigan

April 8, 1886

Error to Alpena.

Kelly & Gilchrist, for plaintiff.

Turnbull & Dafoe, for defendant and appellant.

SHERWOOD, J.

This case is replevin for a boat. The property was taken on the writ, and delivered to the plaintiff. The suit was commenced on the fifth day of May, 1884. The declaration, in addition to the usual count in replevin, contained a special count for damages alleged to have been sustained by plaintiff by reason of having been deprived of large gains and profits which he could have derived from the use of the boat. The following is the second count: "And for that, whereas, the defendant on May 5, 1884, at the township of Alpena, unlawfully took and detained certain other goods and chattels, the property of said plaintiff, to-wit, one sail-boat, called Calypso which said name is painted on said boat, of great value, to-wit, the value of $700, being the goods chattels, and property of said plaintiff, and the possession of which the said plaintiff was then and there, to-wit, on the day and year last aforesaid lawfully entitled; and the said defendant, well knowing that at the time and place aforesaid, and for several days then next following, that the said plaintiff had and possessed special means and opportunity for using and employing his said boat in securing and obtaining oats from a certain vessel then aground on Middle island, in Lake Huron, whereby said plaintiff would have derived large gains and profits, to-wit, $1,000, for the use of his said boat during the time aforesaid, had not the defendant wrongfully deprived plaintiff of the same in manner as aforesaid." The plea was the general issue. The cause was tried in the Alpena circuit, by jury, and the plaintiff obtained judgment for $400 damages.

The facts, as shown by the record, are as follows: The plaintiff lived about a mile from Lake Huron, in the town of Alpena. The boat in question was owned by the plaintiff, and used by him in light freighting business, attending wrecks, and carrying grain. The boat had been drawn out of the water the fall before upon the beach, upon the premises of J.D Turnbull, and kept there through the winter, and until the second day of May, 1884, about which time a large grain vessel stranded on Middle island reef, about 5 or 6 miles from where the plaintiff's boat laid. Knowing the condition of the stranded vessel, and that she was laden with oats, and anticipating that a portion of her cargo would probably be jettisoned, the plaintiff thought to use his boat for the purpose of securing the oats as they were thrown from the vessel. It required eight or ten men to launch the plaintiff's boat. On the second of April the defendant took a sufficient number of men, went to the beach, and launched the boat. While they were engaged in launching it, the plaintiff sent one Fitsimmons to the beach, who informed the defendant that the plaintiff sent him to get the boat, and he refused to let Fitsimnons have it. Defendant, after launching the boat, used it two days in transporting oats from the wreck, securing during the time about 1,800 bushels, and paying the mate therefor about $15.50. Several other vessels which tried to get some of the oats were not allowed to obtain any by the mate of the wrecked vessel. After using the plaintiff's boat two days, the defendant returned the boat to the place where he took it, and he testified upon the trial that the plaintiff had frequently told him to use the boat when he wanted it. This was, however, denied by the plaintiff.

On the fifth day of May, after the boat had been returned to the beach, the plaintiff called upon the defendant at his place of business, at his mill; and he testifies that the defendant then and there told him he should not have the boat until he paid the defendant an account of about $100 which he owed the defendant. This the defendant denies, and says that he offered to go and help the plaintiff launch the boat if he wanted it. It further appears from the testimony that the boat cost, when made, about $500; that its use was worth, ordinarily, about a dollar per day; and that plaintiff sold the boat afterwards, and in 1884, for $175; that the land where the boat laid was not owned or controlled by either party; and that no other effort was made by the plaintiff to get possession of his boat than is above stated. It further appears from the testimony of the plaintiff in the case that the boat, on the day the suit was commenced, laid upon the beach; that she was in his possession, and he was to take her before commencing the suit; saw the defendant at his mill, and made no demand upon him for the boat.

Upon the foregoing facts, it is claimed by defendant's counsel replevin will not lie. Replevin will not lie against one who is not detaining the property when the writ is sued out. Burt v. Burt, 41 Mich. 83; S.C. 1 N.W. 936; Morrison v. Lumbard, 48 Mich. 548; S.C. 12 N.W. 696. Actual detention of the property is necessary to sustain replevin. Wells, Repl. �� 52, 134; Sexton v. McDowd, 38 Mich. 148; Hickey v. Hinsdale, 12 Mich. 99; Bacon v. Davis, 30 Mich. 157. It is the condition and situation of things when the suit is commenced which furnish the grounds for the action. Belden v. Laing, 8...