McGovern v. Michael, 7895.

• Decision Date: 30 June 1938
• Docket Number: No. 7895.,7895.
• Citation: 200 A. 423
• Parties: McGOVERN, Deputy Sheriff, v. MICHAEL et al.
• Court: Rhode Island Supreme Court

200 A. 423

McGOVERN, Deputy Sheriff,

v. MICHAEL et al.

No. 7895.

Supreme Court of Rhode Island.

June 30, 1938.

Exceptions from Superior Court, Providence and Bristol Counties; Herbert L. Carpenter, Judge.

Action of debt by Francis L. McGovern, Deputy Sheriff, against Assad Michael and others on a replevin bond. The plaintiff and the defendants moved for a directed verdict in their respective favor, the trial justice granted the motion made by the plaintiff and denied that made by the defendants, and the defendants bring exceptions.

Exceptions overruled, and case remitted for entry of judgment for the plaintiff on the verdict as directed.

Aram A. Arabian, Benjamin Cianciarulo, and Arabian, Gonnella & Barad, all of Providence, for plaintiff. Frank H. Wildes, of Providence, for defendants.

BAKER, Justice.

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This is an action of debt on a replevin bond. At the trial of the case in the superior court, before a justice thereof and a jury, when all the evidence was concluded, the plaintiff and the defendants moved that the court direct a verdict in their respective favor. The trial justice granted the motion made by the plaintiff and denied that made by the defendants. To this ruling the latter have prosecuted their bill of exceptions to this court.

The bond in question, which was in the penal sum of $3000, was given by the defendant Assad Michael, as principal, and by the other defendants, as sureties, when the said Michael replevied from the present plaintiff a stock of dry-goods and certain fixtures which the latter, as a deputy sheriff of Providence county, had attached on April 25, 1930, as the property of one Peter Michael, in an action at law wherein Harry Jacobs was plaintiff and said Peter Michael was defendant. The writ of replevin, in connection with which the bond in suit was given, was dated April 26, 1930. This replevin action proceeded to trial in the superior court where a verdict was directed for the then defendant McGovern. This court thereafter sustained the action of the superior court, and on April 16, 1936, judgment was entered on the verdict as directed in favor of the defendant McGovern for the return and restoration of the goods replevied, ten cents damages and costs taxed at $5. Michael v. McGovern, 56 R.I. 133, 184 A. 571.

The replevin bond now sued on contains the following conditions: "Now if said Assad Michael shall prosecute said writ of replevin to final judgment, and pay such damages and costs as said Francis L. McGovern shall recover against him, and shall also return and restore the same goods and chattels, in like good order and condition as when taken, in case such shall be the final judgment on said writ; then this obligation shall be void, otherwise, shall remain and be in full force and effect."

The parties herein are in dispute as to whether or not the above conditions have been complied with by the defendant Assad Michael. There is no evidence in the transcript before us showing that he has paid or tendered to the present plaintiff the damages and costs recovered by the latter under the above-mentioned judgment against him. The position of Assad Michael on this matter apparently is that no such damages and costs were ever demanded of him, although this is denied by the deputy sheriff seeking the return and restoration of the goods and chattels. Regarding the conditions in a replevin bond, this court has held that "The several requirements of the condition of a replevin bond are to be regarded as distinct and independent conditions, and a breach of either is a forfeiture of the bond." Gardiner v. McDermott, 12 R.I. 206, at page 208.

However, the chief point of contention between the parties relates to the alleged offer by the defendant Assad Michael to return to the plaintiff the goods and chattels in question. In this connection, the evidence before us shows that on April 18, 1936, one Mauro, a deputy sheriff, went to the said defendant's store with process and made a demand upon him for the return of the goods which had been taken under his writ of replevin. This sheriff testified, in substance, that the said Assad Michael apparently had difficulty in understanding what was wanted, that he stated he knew nothing about the goods and also made some reference to his brother. On the other hand, Assad Michael testified that he offered the deputy sheriff the key of a store at 27 Arthur (later Balbo) avenue in Providence, where the replevied goods allegedly had been kept since the attachment of April 25 and the replevin of April 26, 1930, had been made; that the deputy sheriff did not take the key, stating that he would return for it later, but that he did not come back that day.

The transcript then shows that on the morning of April 21, 1936, the defendant Assad Michael, with his attorney, went to the office of the sheriff of Providence county in the Providence County Court House and consulted with the deputy sheriff in...