Stern v. Knowlton

• Decision Date: 19 June 1903
• Citation: 184 Mass. 29,67 N.E. 869
• Parties: STERN v. KNOWLTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

184 Mass. 29

67 N.E. 869

STERN v. KNOWLTON.

Supreme Judicial Court of Massachusetts, Suffolk.

June 19, 1903

COUNSEL

A. K. Cohen, for plaintiff.

P. J Casey, for defendant.

OPINION

BARKER J.

The action is in tort to recover from the defendant indemnity for losses sustained in consequence of his negligently taking insufficient sureties upon two replevin bonds taken upon writs which he served as a constable. The action is founded upon the common law, and such actions are recognized by our statute and decisions. See Rev. St. c. 113 § 39, and commissioner's note to same; Gen. St. c. 143, § 21; St. 1870, p. 228, c. 309, § 2; Pub. St. c. 184, §§ 19 27; Rev. Laws, c. 190 §§ 15, 24; Ladd v. North, 2 Mass. 514, 516, 517; Parker v. Simonds, 8 Metc. 205; Pomeroy v. Trimper, 8 Allen, 398, 400, 85 Am. Dec. 714; Carter v. Duggan, 144 Mass. 32, 10 N.E. 486. In the case last cited it is held that the measure of damages is not the value of the property replevied, but is the amount plaintiff has lost by reason of the misdoing of the defendant in accepting insufficient sureties. The action is similar in its nature to that against a sheriff for taking insufficient bail. See West v. Rice, 9 Metc. 564. The present action was tried without a jury, and with exceptions on the part of the defendant to the admission of evidence and to the refusal to grant requests for rulings.

1. Oral evidence was admitted that the property replevied was the same which the plaintiff had attached upon two certain writs placed in his hands for service. The evidence contradicted no return, and was competent upon the question of the identity of the property.

2. The conversation between the plaintiff and defendant, admitted under exception, was competent to show admissions made by the defendant tending to show that he had acted negligently in taking insufficient sureties upon the replevin bond.

3. The measure of damages being indemnity for the loss which the plaintiff had sustained, evidence of the amount which he had agreed to pay his counsel for services in the replevin actions and the suits upon the replevin bonds was competent, although, of course, not conclusive, upon the question of damages.

4. The first ruling requested and refused was that, on all the evidence, the plaintiff could not recover on either count. In support of the exception, the defendant contends that there was no evidence that the plaintiff had brought action on both bonds. It is true that the plaintiff has not recovered judgment on either bond. But the evidence tended to show that he had brought one suit upon both bonds, and that the action failed because the makers of the bond could not be found, so that the writ could not be served.

5. The second request was that the plaintiff himself has no right to sue the defendant on either bond, and that the bonds should run to the plaintiff....