Washington Ice Co v. Wesbter

• Decision Date: 02 April 1888
• Citation: 125 U.S. 426,31 L.Ed. 799,8 S.Ct. 947
• Parties: WASHINGTON ICE CO. et al. v. WESBTER
• Court: U.S. Supreme Court

125 U.S. 426

8 S.Ct. 947

31 L.Ed. 799

WASHINGTON ICE CO. et al. v. WESBTER.

April 2, 1888.

A.

P. Gould, for plaintiffs in error.

Benj, F. Butler, for defendant in error.

BLATCHFORD, J.

On the 12th of August, 1870, the Washington Ice Company, a New York corporation, procured from the supreme judicial court of the state of Maine a writ of replevin, directed to the sheriff of the county of Lincoln, in that state, commanding him to replevy 'a certain lot of ice, being about thirty-eight hundred tons of ice, now lying and being in certain ice-houses situate in the town of Boothbay, in the county of Lincoln and state aforesaid, and owned or occupied by Nathaniel Webster, of Gloucester, in the county of Essex and commonwealth of Massachusetts, of the value of fifteen thousand dollars, belonging to the Washington Ice Company, * * * now taken and detained by Nathaniel Webster, * * * and them deliver unto the said the Washington Ice Company,' and summon the defendant to appear before the court within and for the county of Lincoln on the fourth Tuesday of October, 1870, to answer unto the plaintiff in a plea of replevin, for that the defendant, on the 1st of August, 1870, at said Boothbay, unlawfully took the goods of the plaintiff as aforesaid and them unlawfully detained: 'Provided they, the said plaintiffs, shall give bond to the said defendant, with sufficient sureties, in the sum of thirty thousand dollars, being twice the value of the said goods and chattels, to prosecute the said replevin to final judgment, and to pay such damages and costs as the said defendant shall recover against them; and also to 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.' The sheriff made a return to the writ, dated August 13, 1870, as follows: 'By virtue of this writ I have taken the ice within named, as the property of the within-named Washington Ice Company, and, on the 19th day of August, A. D. 1870, I delivered said ice to Hiram Perkins, whom the Washington Ice Company designated as their agent to receive said ice; and, on the 19th day, I summoned the within-named Nathaniel Webster, by reading this writ in his presence and hearing, for his appearance at court; the quantity replevied, by actual weight, being about twenty-five hundred tons.' Webster pleaded the general issue to the writ, at October term, 1871, and filed a brief statement and special matter in defense, setting forth that at the time of the alleged taking, as stated in the writ, the ice named therein was not the property of the plaintiff, nor had the plaintiff any right to the possession thereof, but it was the property of the defendant and one Babson, and was rightfully in the possession of the defendant, and was wrongfully taken from his possession by the plaintiff; and prayed judgment for the return of the ice in like good order and condition as when it was taken from the possession of the defendant, and for damages for such taking and detention, and for costs.

The case came on for trial before a jury, and evidence was put in; but the case was taken from the jury, and submitted to the full court, on the report of the evidence by the judge, and transferred to the supreme judicial court for the Middle district. It was there heard, and is reported as Ic Co. v. Webster, 62 Me. 341. It is there stated that the case came before the full court under an agreement that, if the action was maintainable, it was to stand for trial, but otherwise a nonsuit was to be entered. On June 26, 1874, the order of the full court was received in these words: 'The nonsuit to stand, judgment for return of the goods replevied, damages to the time of taking to be assessed at nisi prius, if the defendant so elect, or he may, if he prefer, resort to his remedy on the bond.' The case was then continued to October term, 1874, when the defendant elected to have his damages assessed by a jury. The case was then continued to April term, 1875, when leave was granted to the officer who served the writ to amend his return thereon in accordance with the facts; and thereupon he made the following as his amended return, which was allowed by the court, such amended return bearing date August 13, 1870: 'By virtue of this writ, having first taken a bond as prescribed by law, I have this day replevied all the ice by me found in the ice-houses within mentioned, all of which said ice I caused to be weighed on delivery at the wharf in said Boothbay, about three miles from said ice-houses, being the nearest place thereto where ice could be shipped,—twenty-two hundred and ninety-seven tons and nineteen hundred and twenty-one pounds of which was thus weighed on successive days, portions of it on each week day between the 23d day of August, 1870, and the 16th day of September, 1870, and thirty-three tons and nineteen hundred and thirty pounds thereof was thus weighed on three several days between the 26th day of September, 1870, and the 26th day of October, 1870, the whole of said ice thus taken by me weighing twenty-three hundred and thirty-one tons and eighteen hundred and fifty-one pounds, and, on the 19th day of August, gust, 1870, I delivered all the said ice at said ice-houses to the plaintiff, reserving to myself authority to weigh the same; and, on the 19th day of said August I summoned the within-named Nathaniel Webster to appear at court, as within directed, by reading this writ aloud in his presence and hearing.' The action of replevin was tried by a jury, and the presiding judge submitted to them to find, in addition to their verdict, answers to two questions; and the jury, on the 14th of May, 1875, returned the following verdict: 'The jury find that the defendant was damaged by reason of the taking of the property replevied in the suit, and assess damages for the defendant in the sum of six thousand five hundred and fifty-five dollars.' They also returned answers as follows to the questions submitted to them: 'First. What was the value of the ice replevied, where it was situated, at the time it was taken in this suit? Answer. Twenty thousand and sixty-nine dollars and thirty-three cents. Second. What damage did the defendant sustain by reason of the taking of the ice in replevin, on account of the preparations he had to make to remove it? A. Eight hundred and thirty-five dollars and twenty-five cents.' The plaintiff filed exceptions to the rulings of the judge in matters of law, and also moved to set aside the verdict. The evidence was reported to the full court, and the case was transferred to the supreme judicial court for the Middle district, where it was heard, and is reported as Ice Co. v. Webster, 68 Me. 449. The decision of the court was, that the motion and exceptions should be overruled. Thereupon, a judgment was rendered by the lower court, on the 4th of May, 1878, that the property replevied be returned and restored to Webster irrepleviable, and that he recover against the Washington Ice Company $7,723.98, damages for the taking and detaining of the property replevied, being the amount of the verdict, with interest thereon to the date of the judgment, and also $477.67 costs of suit. On the 31st of July, 1878, a writ of return was issued on the judgment. It recited that the Washington Ice Company had replevied the 2,331 tons and 1,851 pounds of ice, of the value of $20,069.33, and set forth the terms of the judgment for the return, and for the recovery of the $7,723.98 damages for the taking, and the $477.67 costs, and commanded the sheriff that he forthwith return and restore the said property to Webster, and collect the said sums of money from the Washington Ice Company, with interest from the 4th of May, 1878. On the 19th of August, 1878, a demand was duly made upon the Washington Ice Company for the return of the ice mentioned in the writ of restitution. On the 17th of September, 1878, the Washington Ice Company paid to Webster $8,379.36, in full for such damages and costs, and interest. The receipt given by Webster for the amount contained this clause: 'This receipt not to affect any further claim of the withinnamed Webster for the ice named in said writ, or for any further damages or costs that may be recovered or recoverable by said Webster.' Before delivering the ice to the plaintiff in the original writ of replevin, the sheriff, as commanded by the writ, and as stated by him in the amended return, exacted a bond in the penalty of $30,000, dated August 12, 1870, executed by the Washington Ice Company, as principal, and Josiah H. Drummond and William E. Gould, to Webster, the condition of which was as follows: 'The condition of the above obligation is such that, whereas the said the Washington Ice Company have this day commenced against the said Nathaniel Webster an action of replevin for a certain lot of ice, being about thirty-eight hundred tons of ice, now lying and being in certain ice-houses situate in the town of Boothbay, in the county of Lincoln, and state of Maine, owned or occupied by Nathaniel Webster, of Gloucester, in the county of Essex and commonwealth of Massachusetts, of the value of fifteen thousand dollars, which they say the said Nathaniel Webster has unlawfully taken: Now, therefore, if the said the Washington Ice Company shall prosecute the said replevin to final judgment, and pay such damages and costs as the said Nathaniel Webster shall recover against them, and 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, then the said obligation to void; otherwise, to remain in full force.' On the 13th of February, 1879, Webster brought the present action of debt, in the circuit court of the United States for the district of Maine, against the Washington Ice Company and Drummond and Gould, founded on the said bond. The defendants appeared, and by their plea prayed oyer of the bond...