Leeper, Graves & Co. v. First Nat. Bank

• Decision Date: 12 July 1910
• Citation: 110 P. 655,26 Okla. 707
• Parties: LEEPER, GRAVES & CO. et al. v. FIRST NAT. BANK OF HOBART.
• Court: Oklahoma Supreme Court

110 P. 655

26 Okla. 707

LEEPER, GRAVES & CO. et al. v. FIRST NAT. BANK OF HOBART.

Supreme Court of Oklahoma

July 12, 1910

Syllabus by the Court.

The obligors on a replevin bond given by the plaintiff who has by virtue thereof received and retained the property are estopped from questioning its validity on the ground of formal or technical defects.

The fact that the undertaking in replevin provided for by section 5689, Comp. Laws Okl. 1909, was indorsed as filed at a date subsequent to the issuance of the writ, does not affect its validity where the same was in fact signed at a prior date and the writ itself recites that before its issuance an undertaking was filed.

In an action of replevin, where there is an alternative judgment rendered against plaintiff for the return of the property taken or its value, it is the duty of plaintiff to promptly and in good faith tender all of the same in as good condition as received and a failure to do so will render his sureties liable on their undertaking for the full amount that defendant may be damaged thereby.

(a) In such a case, however, where plaintiff within a reasonable time makes a good faith tender of a substantial part of the property taken, it is the duty of the defendant to accept the same and recoup on plaintiff's bond for any damages suffered.

Plaintiff took from defendant in an action of replevin eight steel bridges. The trial resulted in a judgment against plaintiff for the return thereof or their value. Within a reasonable time plaintiff in good faith tendered defendant all of the property shown to have been taken with the exception of a small fraction thereof. It was not shown that plaintiff willfully withheld the part not tendered or that the same could not be readily supplied in the open market. Defendant rejected the tender, and the court rendered judgment for the value of the whole property. Held error; it being the duty of defendant to accept the property tendered and recoup damages on the bond.

(Additional Syllabus by Editorial Staff.)

Trover is an action to recover damages sufficient to cover the value of personal property wrongfully held by another, while replevin or detinue is primarily an action to recover the property, and a judgment is given only in the absence of ability to secure the specific articles claimed.

Error from District Court, Kiowa County; Frank E. Gillette, Judge.

Action by the First National Bank of Hobart against Leeper, Graves & Co., and others. Judgment for plaintiff, and defendants bring error. Affirmed in part and remanded.

E. E Blake, for plaintiffs in error.

L. M Keys and Ledbetter, Bell & Stuart, for defendant in error.

DUNN C.J.

This case presents error from the district court of Kiowa county, and is an action to recover on an undertaking filed by the plaintiffs in error in an action of replevin. The facts out of which it grows are substantially as follows: On the 18th day of April, 1904, the First National Bank of Hobart, Okl., was a pledgee in possession of eight steel bridges of the value of $4,855, held by it as a security for an indebtedness of $6,000. Upon the day stated Leeper, Graves & Co., a corporation, began an action to secure possession of this property, and a bond was executed and filed in the office of the clerk of the district court, signed by the plaintiff and D. S. Dill, J. G. Leeper, and John W. Graves. A writ of replevin was issued; and the property involved was taken from the possession of the bank and delivered to the plaintiff. On the trial of this action judgment was rendered in favor of the bank for the return of the property if it could be had, and if the same could not be returned, then for the sum of $4,855, the value thereof, together with the costs of the action. Thereafter and on the 25th day of October, 1905, the bank, having neither received the property nor been paid the amount of the judgment rendered, brought this action in the same county to recover on the bond filed by plaintiff in the replevin action. Answers were filed by all the parties defendant in which the rendition of the judgment above mentioned was admitted with the averment that, within a reasonable time after the rendition of the said judgment the defendant Leeper, Graves & Co., paid all the costs of said action, and tendered to plaintiff the personal property involved, and that plaintiff then and there refused to accept it. The reply was a general denial, and the action was tried to the court, which, after making special findings of fact and conclusions of law, rendered judgment in favor of the bank and against the defendants in the sum of $4,855, with interest at the rate of 7 per cent. per annum from the 28th day of April, 1904. To reverse this judgment, proceedings in error have been begun in this court.

It is first insisted on behalf of defendants in this action that no recovery could be had on the bond by reason of the fact that it appears not to have been filed in the office of the clerk of the district court until after the order of delivery had been issued by the clerk. On the question thus raised by counsel, the facts found by the trial court in its second and third findings of fact are apparently supported by the record, and they are as follows:

Second. "At the time of filing the petition a replevin bond signed by Leeper, Graves & Co. and D. S. Dill was presented to the clerk of the court and subscribed and acknowledged, and thereupon a writ of replevin issued for the property sought to be recovered, which writ was never served, and was returned to the court unserved on April 26, 1904. In the meantime and on the 25th day of April, 1904, J. G. Leeper and John W. Graves qualified as bondsmen on said replevin bond before the clerk of the district court of Oklahoma county, and upon oath stated in their qualification, each for himself, that he was the person who signed the bond in the case of Leeper, Graves & Co., Plaintiff, v. First National Bank, case No. 376. Afterwards and on the 27th day of April, 1904, a second order of replevin was issued in said cause upon which order the property sought to be recovered was on the 28th day of April, 1904, taken from the possession of the First National Bank by the sheriff, who, after holding the same for 24 hours, delivered the property into the possession of one R. W. Shepherd, attorney for Leeper, Graves & Co., as shown by the sheriff's return."

Third. "The court finds written at the foot of the replevin bond the following words: 'Subscribed and acknowledged before me this 28th day of April, 1904, by J. G. Leeper and John W. Graves. D. B. Shear, Clerk Third District, by W. H Clark, Dep.' The court further finds said bond indorsed, 'Presented, approved and filed, this 30th day of April, 1904,' and the court makes note of the fact that the figures '30th' are not the original figures indicating the day of the month upon which the bond was filed, for it clearly appears from the paper itself that the figures originally written there have been erased and the figures '30th,' subsequently written. No oral testimony in the trial of the cause was addressed to the facts stated in the third and second findings of fact, touching the execution and delivery of said bond, except that which appears from the indorsements upon said bond, but the court concludes from the files that said replevin bond was executed by Leeper, Graves & Co. and D. S. Dill April 18, 1904, and afterwards by J. G. Leeper and John W. Graves on the 25th day of April, 1904, before the clerk of the district court of Oklahoma county, as shown by their affidavits in qualifying as such bondsmen, and that the order of replevin was not issued until they did so sign and execute said bond; that afterwards said bond was sent back to the said clerk of Oklahoma county for an acknowledgment upon the instrument itself, and was then marked as having been acknowledged on the 28th day of April, instead of the 25th, as sworn to before the same clerk, and, having afterwards been returned to the district clerk at Hobart, the filemark was changed to April 30th." The objection which counsel make, as is seen, does not in any way affect the merits of the bond given or change in any particular the liability which the parties thereto sought to incur. The bond was executed and all things necessary to be done by the parties were performed prior to the issuance of the replevin order. The end which was sought to be attained on their part was to secure the property, and this was accomplished, and the objection which is here made is of a technical character, which, after the benefits of the bond have been received, cannot be looked upon with favor. Wells on Replevin, § 436; Cobbey on Replevin, § 1288; Cook, etc., v. Bank of Kentucky, 28 Ky. 163; Central Nat. Bank of Topeka et al. v. Brecheisen, 65 Kan. 807, 70 P. 895; Cady v. Eggleston et al., 11 Mass. 282; 24 Am. & Eng. Ency. Law, pp. 533, 534, and cases therein cited. The rule as declared in Wells on Replevin, supra, is as follows: "The general rule is well settled that the plaintiff in replevin who has had the property delivered to him on his writ cannot dispute the validity of the bond on any mere technical grounds or for any failure to comply with the statutory process as to the manner of its execution. The rule in all such cases seems to be based on the idea that the party who has obtained delivery of the property by virtue of his suit, and by filing his bond, has had all the benefit which would accrue if the bond had been formal, and is estopped from questioning its validity on the ground of formal or technical defects." In the case of Cady v. Eggleston, supra, it was contended that the bond was void because not completed until after the writ was served, which is substantially the...