Evans v. Kloeppel

CourtFlorida Supreme Court
Writing for the CourtELLIS, J.
Citation73 So. 180,72 Fla. 267
Decision Date21 November 1916
PartiesEVANS et al. v. KLOEPPEL.

73 So. 180

72 Fla. 267

EVANS et al.
v.
KLOEPPEL.

Florida Supreme Court

November 21, 1916


Error to Circuit Court, Duval County; Daniel A. Simmons, Judge.

Replevin by R. Kloeppel against R. J. Evans, Jr., and others. There was a judgment for plaintiff, and defendants bring error. Affirmed.

Syllabus by the Court

SYLLABUS

The action of 'replevin' under the statute lies for an unlawful detention of chattels as well as in cases where the taking was tortious.

Where a seller of chattles reserves title in himself until the payment of the price, he may maintain an action of replevin upon default in payment of the price.

In an action of replevin, where the defendant lawfully obtained possession of the chattel, but failed to comply with the conditions of the agreement under which he came into possession of the property, and under the terms of the agreement such default confers on the plaintiff the right of possession, no demand by the plaintiff for possession is necessary before bringing the action. Nor is a demand necessary where the defendant asserts title to the property in dispute.

Where, in an action of replevin, a plea interposed by defendant to the declaration sets up no defense to the action, and the plaintiff joins issue upon such plea and goes to trial, the court should not withdraw from the jury consideration of the issue presented by such plea.

Where a cause has been tried upon an immaterial issue which does not determine the rights of the parties in the litigation, judgment should not be entered upon the finding on such a plea.

Where pleas to a declaration present no point in bar, abatement, or set-off, the plaintiff may treat them as nullities and have a judgment as for want of a plea.

Where K. sold an automobile to E. taking in payment part cash and notes for the balance and retaining title to the automobile until the purchase price should be paid in full, the notes providing that in default of payment or in case of alienation of the property by the maker of the note the payee should be authorized to take possession of the property, held, that upon default by the payee to pay one of the notes at maturity K. could maintain an action of replevin for the automobile without previous demand and was entitled to possession of the property and damages for the wrongful detention, and that the measure of damages was the value of the use of the property as estimated by the market price of such use during the period of unlawful detention.

In such a case, a plea by defendant claiming a set-off either against the damages recoverable for the unlawful detention, or the value of the car, on account of the money paid on the purchase price thereof, is without merit.

Amendments to pleadings at the trial of a cause are allowable in the discretion of the court upon such terms as are reasonable.

Section 2188, General Statutes of Florida 1906, provides that judgment for the plaintiff in actions of replevin shall be satisfied by the recovery of the property or of the amount adjudged against the defendant and the sureties on the forthcoming bond, where the property has been redelivered to the defendant on his forthcoming bond.

The sureties upon a forthcoming bond, given by a defendant in an action of replevin, submit themselves to the acts of the principal and to the judgment as a legal consequence falling within the suretyship. They are represented in the proceedings by their principal, are bound by his acts, and are quasi parties to the suit; they thus have their day in court and are bound by the judgment against their principal to the exclusion of all defenses that were or might have been set up by him.

Errors occurring in the pleadings and trial of a cause may be rendered harmless by the verdict and judgment so far as the complaining party is concerned.

COUNSEL [73 So. 181] [72 Fla. 269] Le Sueur Gaulden, of Jacksonville, for plaintiffs in error.

OPINION

ELLIS, J.

This is an action of replevin. The defendant in error, who was the plaintiff below, was engaged in business as a dealer in automobiles in March, 1914, under the name of the 'Kloeppel Motor Company.' The plaintiff in error R. J. Evans, Jr., who was the defendant below, purchased from Kloeppel and automobile known as 'Reo the Fifth Touring Car.' The price agreed to be paid was $1,225. The terms of the agreement were as follows: Kloeppel was to take in trade an old car owned by Evans at an agreed valuation of $450, and Evans was to pay in cash $125, and deliver his six notes for the remainder, each note to be for the sum of $100 except the second, which was to be in the sum of $150, and each note to contain a provision to the effect that the title to the machine should remain in the payee until the purchase price should be paid in full, and in default of payment, or in case of alienation of the property by the maker of the note, the payee should be authorized to take possession of the property. This agreement was concluded by the delivery of the automobile by Kloeppel to Evans and the delivery by Evans to Kloeppel of the old car at a valuation of $450 and the payment of $125 [72 Fla. 270] in cash and six promissory notes for the aggregate sum of $650. The first of these notes was payable April 15, 1914, the second April 27, 1914, and the other four in four months thereafter at intervals of one month.

The plaintiff in error paid the first note which was for the sum of $100 and failed to pay the second which was for the sum of $150. Thereupon the defendant in error, Kloeppel, began his action of replevin against Evans to recover possession of the Reo machine.

The record recites that the affidavit, which the statute requires to be filed in such cases by the plaintiff, was in proper form, the property was described as 'One Reo the Fifth Touring Car Automobile Number 53049, 1914 Model,' and was of the value of $1,000, and a bond in the sum of $2,000 was filed. On the same day, the defendant R. J. Evans, Jr., took the property upon his forthcoming bond with two sureties, L. I. Evans and R. Walter Bennett, in the sum of $2,000.

The declaration is in two counts. The first count alleges that the defendant R. J. Evans, Jr., on the 27th day of March, 1914, took the property, describing it, and alleging its value to be $1,000, and 'unjustly and unlawfully detained the same until the institution of this suit.' The second count alleges an unlawful taking.

To this declaration the defendant interposed three pleas, as follows: First, that he did not unlawfully take the goods; second, that no demand had been made upon him for the goods. The third plea was entitled a 'defense on equitable grounds.' It averred the purchase of the machine by defendant in March, 1914, at the price of [72 Fla. 271] $1,175, that the plaintiff was to take in payment therefor defendant's old car at $400 and $125 in cash and six notes for the aggregate sum of $650, each note to be in the form and for the amounts and payable upon the dates hereinbefore stated; that the first note was paid, as well as the cash payment of $125, and the old car delivered, making a total payment of $625; and that he had made default in the payment of such notes as were due when the suit was instituted; that the suit was begun because of such default; that the property was taken from the defendant by the sheriff on the writ of replevin and redelivered to the defendant on his forthcoming bond; that by reason of the suit the plaintiff, Kloeppel, had elected to rescind the agreement for the sale of the property, but had not offered to refund to the defendant the $625 paid by the defendant as aforesaid; that defendant was willing to return the property, and it would be 'inequitable and unjust for the plaintiff to recover the property sold as aforesaid and retain' the amount paid by the defendant, and claimed the amount of $625 as due to him from the plaintiff, and prayed judgment therefor, concluding the plea in the following language:

'And this defendant says and claims that, in any judgment of this court ordering this defendant to turn over to plaintiff the property described in the declaration, there should also be included an order or judgment against the plaintiff and his bondsmen ordering him and them to pay to this defendant the said consideration paid by this defendant to plaintiff as part payment [73 So. 182] aforesaid, to wit, the sum of $625, and that plaintiff should be required to pay said [72 Fla. 272] sum to defendant before or at the time of the delivery of said car to plaintiff, and defendant so prays and claims damages by way of set-off in the sum of $2,000.'

The plaintiff joined issue upon these pleas, and the cause went to trial on December 1, 1915, and resulted in the following verdict for the plaintiff:

'Jacksonville, Fla., December 1, 1915.

'We, the jury, find for the plaintiff, Kloeppel and that the plaintiff is entitled to the personal property described in the declaration as follows, to wit, one Reo the Fifth touring car automobile, No. 53049, 1914 model, and we do further find that the value of said property nine hundred dollars ($900); and further we do assess the damages of the plaintiff against the defendant for the wrongful detention of said property in the sum of five hundred dollars ($500); we do further find that the defendant Dr. R. J. Evans, Jr., is entitled to money set off against the plaintiff for damages in the sum of six hundred twenty-five dollars ($625).

'So say we all. H. L. Babbitt, Foreman.'

On the 2d day of December, 1915, the following judgment was entered:

'This day came the parties in the above-entitled cause, also came a jury of six (6) good and lawful men, to wit, H. L. Babbitt, and five others, who were duly sworn according to law to try the right of property and assess the value and damages in said cause. Thereupon the evidence was duly submitted to the jury...

To continue reading

Request your trial
34 practice notes
  • Dudley v. Harrison, Mccready & Co.
    • United States
    • United States State Supreme Court of Florida
    • 16 Abril 1937
    ...1029. While not directly and completely in point here, see, also, as highly persuasive in this connection Evans v. Kloeppel, 72 Fla. 267, 73 So. 180; Johnston v. Campbell, 100 Fla. 393, 129 So. 765; Bond v. Hewitt, 111 Fla. 180, 149 So. 606; [173 So. 824] Berger v. Mabry, 113 Fla. 31, 151 S......
  • Reliance Life Ins. Co. of Pittsburgh, Pa., v. Lynch
    • United States
    • United States State Supreme Court of Florida
    • 28 Mayo 1940
    ...And, if it does so, motion for judgment non obstante veredicto in plaintiff's favor should thereafter be granted. See Evans v. Kloeppel, 72 Fla. 267, 73 So. 180. 'So, despite the fact that on plaintiff's demurrer to the plea such plea had been held good, the plaintiff's motion for a directe......
  • General Ins. Co. of America v. Deen, No. 2
    • United States
    • Court of Appeals of Arizona
    • 7 Abril 1966
    ...Box & Panel Co. v. Ipock, 217 N.C. 375, 8 S.E.2d 243 (1940); Moore v. Humphrey, 247 N.C. 423, 101 S.E.2d 460 (1958); Evans v. Kloeppel, 72 Fla. 267, 73 So. 180 (1916); Cabell v. Floyd, 21 Tex.Civ.App. 135, 50 S.W. 478 (1899); Glenn v. Porter, 68 Ark. 320, 57 S.W. 1109 (1900); Moore v. Kepne......
  • Knabb v. Reconstruction Finance Corp.
    • United States
    • United States State Supreme Court of Florida
    • 30 Julio 1940
    ...Co., 69 Fla. 52, 67 So. 568; New York Life Ins. Co. v. Mills, 51 Fla. 256, 41 So. 603; Evans v. Kloeppel, decided at the June Term, 1916, [72 Fla. 267], 73 So. 180.' Our statute, Sec. 6818, C.G.L., expressly provides that the holder of a note is prima facie deemed to be a holder in due cour......
  • Request a trial to view additional results
34 cases
  • Dudley v. Harrison, Mccready & Co.
    • United States
    • United States State Supreme Court of Florida
    • 16 Abril 1937
    ...1029. While not directly and completely in point here, see, also, as highly persuasive in this connection Evans v. Kloeppel, 72 Fla. 267, 73 So. 180; Johnston v. Campbell, 100 Fla. 393, 129 So. 765; Bond v. Hewitt, 111 Fla. 180, 149 So. 606; [173 So. 824] Berger v. Mabry, 113 Fla. 31, 151 S......
  • Reliance Life Ins. Co. of Pittsburgh, Pa., v. Lynch
    • United States
    • United States State Supreme Court of Florida
    • 28 Mayo 1940
    ...And, if it does so, motion for judgment non obstante veredicto in plaintiff's favor should thereafter be granted. See Evans v. Kloeppel, 72 Fla. 267, 73 So. 180. 'So, despite the fact that on plaintiff's demurrer to the plea such plea had been held good, the plaintiff's motion for a directe......
  • General Ins. Co. of America v. Deen, No. 2
    • United States
    • Court of Appeals of Arizona
    • 7 Abril 1966
    ...Box & Panel Co. v. Ipock, 217 N.C. 375, 8 S.E.2d 243 (1940); Moore v. Humphrey, 247 N.C. 423, 101 S.E.2d 460 (1958); Evans v. Kloeppel, 72 Fla. 267, 73 So. 180 (1916); Cabell v. Floyd, 21 Tex.Civ.App. 135, 50 S.W. 478 (1899); Glenn v. Porter, 68 Ark. 320, 57 S.W. 1109 (1900); Moore v. Kepne......
  • Knabb v. Reconstruction Finance Corp.
    • United States
    • United States State Supreme Court of Florida
    • 30 Julio 1940
    ...Co., 69 Fla. 52, 67 So. 568; New York Life Ins. Co. v. Mills, 51 Fla. 256, 41 So. 603; Evans v. Kloeppel, decided at the June Term, 1916, [72 Fla. 267], 73 So. 180.' Our statute, Sec. 6818, C.G.L., expressly provides that the holder of a note is prima facie deemed to be a holder in due cour......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT