Becker v. Staab

• Decision Date: 28 May 1901
• Citation: 86 N.W. 305,114 Iowa 319
• Parties: R. BECKER & DEGEN, Appellants, v. FRED STAAB
• Court: Iowa Supreme Court

86 N.W. 305

114 Iowa 319

R. BECKER & DEGEN, Appellants, v. FRED STAAB

Supreme Court of Iowa, Des Moines

May 28, 1901

Appeal from Jones District Court.--HON. WILLIAM G. THOMPSON, Judge.

ACTION in replevin for certain cattle, under a chattel mortgage held by plaintiffs, which was duly recorded. There was a jury trial, and verdict awarding the property to defendant, fixing the value at $ 300, and damages at $ 33. Defendant electing to take a money judgment, it was accordingly rendered in his favor for the amounts stated. Plaintiffs appeal.

Reversed.

B. E Rhinehart and J. W. Doxsee for appellants.

Ellison Ercanback & Lawrence and C. W. Kepler for appellee.

OPINION

WATERMAN, J.

As damages for the wrongful taking of the property under the writ, defendant was allowed to testify that he spent about 12 days in consulting counsel and otherwise preparing to defend the case; that his time was worth $ 1.50 per day; and that he paid out for board and other expenses during the time between $ 15 and $ 20. On this evidence, the jury made its allowance of $ 33 damages. The measure of damages in replevin differs when the defendant takes judgment for the return of the property from what is allowed where a money judgment is elected. Romberg v. Hughes, 18 Neb. 579 (26 N.W 351); Just v. Porter, 64 Mich. 565 (31 N.W. 444). There is some language in Cook v. Hamilton, 67 Iowa 394, 25 N.W. 676, which might at first glance seem to conflict with the doctrine announced, but it does not do so in fact. The question involved in that case was not as to the measure of damage, but as to whether a plaintiff in replevin who failed to secure possession of the property and took a money judgment was entitled to anything in addition to the value of the property taken. This was also the proposition ruled upon in Hasted v. Dodge, 35 N.W. 462 (not reported officially). See, also same case in 39 N.W. 668. In the Michigan case, above cited, the rule of damages is thus stated: "The suit in replevin proceeds upon the theory of adjudicating the rights of the parties as they were at the date of the issue of the writ. In the present case the value of the property was proven of that date. If the defendant elects to take the value of the property, he, in effect, thereby makes a sale of it to the plaintiff at the date of its taking, and its value at that time, with interest up to the date of the verdict, is certainly a fair compensation. If he prefers to take the property and the value of its use while detained, he can do so. There is no justice in his taking the value of the property,--selling it to the plaintiff against his will,--and also charging him with the use of it in addition." See, also Bigelow v. Doolittle, 36 Wis. 115; Romberg v. Hughes, supra; 3 Sutherland Damages, 560; Hanselman v. Kregel, 60 Mich. 540 (27 N.W. 678), and numerous cases cited therein. When defendant elected to take a money judgment herein, he was entitled, in the matter of damages, to interest thereon from the date when the cattle were taken up to the date of judgment at 6 per cent., and to nothing more.

Defendant makes in his argument an offer in substantially these terms That if this court, on investigation, finds the judgment too large, he will remit the excess that may be found over $ 300. Whatever right defendant might have under this offer, were this the only question in the case, we need not say. His right to avail himself of the offer as made is disputed. But, as we find ...