Washington Ice Co. v. Webster

• Decision Date: 11 November 1878
• Citation: 68 Me. 449
• Parties: WASHINGTON ICE COMPANY v. Nathaniel WEBSTER.
• Court: Maine Supreme Court

68 Me. 449

WASHINGTON ICE COMPANY v. Nathaniel WEBSTER.

Supreme Judicial Court of Maine.

November 11, 1878

ON EXCEPTIONS AND MOTION.

REPLEVIN of 3,800 tons of ice at Boothbay, stated in 62 Me. 341, as the case first came before the law court, where it was decided that the defendant recover and that he have damages assessed in this action if he so elect. Afterwards at the April term, 1875, the officer by leave of court to amend his return according to the facts, made the following amended return dated, Lincoln ss. August 13, A. D. 1870, and signed Thomas Boyd, deputy sheriff.

" 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; 2,297 tons and 1,921 pounds of which was thus weighed on successive days, portions of it on each week day, between the twenty-third day of August, 1870, and the sixteenth day of September, 1870; and 33 tons and 1,930 pounds thereof was thus weighed on three several days between the twenty-sixth day of September, 1870, and the twenty-sixth day of October 1870; the whole of said ice thus taken by me, weighing 2,331 tons and 1,851 pounds; and on the nineteenth day of said August, 1870, I delivered all the said ice at said ice-houses, to the plaintiffs, reserving to myself authority to weigh the same; and on the nineteenth 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 defendant's damages for the taking of the property replevied were assessed by the jury at $6,555.00, and they found specially that the value of the ice replevied where it was situated at the time it was taken was $20,069.33, and that the defendant sustained damage by reason of the taking of the ice in replevin, on account of the preparations he had made to remove it, $835.25.

The plaintiffs moved to set aside the verdict and alleged exceptions stated thus:

Before proceeding to trial the plaintiffs moved the court to strike off the docket entry, " judgment for a return of the goods replevied," and claimed a hearing upon the question whether there should be judgment for a return ; and contended that upon the former report of the case to the law court, that court was not authorized to order an entry of judgment for a return; and that the question whether there should be such judgment had never been properly tried, and that the court had no authority to make such entry without a distinct submission of that question to them; and the plaintiffs offered the former report of the case to the law court, to show the limitation of authority upon which that court acted. No other hearing has been had upon the question of a return, except as appears by that report, which makes a part of the case.

The plaintiffs claimed the right to open and close, and especially the right to make the closing argument. They contended that under the decision of the law court, the case should now proceed to the assessment of damages as if in the original trial, and that it was the right of the plaintiffs under the state of the pleadings to make the closing argument. But the presiding justice ruled otherwise; and the defendant's counsel made an opening argument before any evidence was introduced, and made the closing argument to the jury.

The plaintiffs requested the following instructions, the first of which was given, the second refused, and the third and fourth not given except as appears in the charge.

" I. That defendant is not entitled to any damage on account of his being so situated that he would have special advantages or opportunities over other men in the community to sell the ice to fishermen.

" II. That the measure of damages to be assessed in this case is the same sum of money which, under ordinary circumstances attending a sale and purchase, might reasonably be agreed on as a fair price for the property, between a vendor desirous of selling, and a purchaser desirous of purchasing the property as a whole.

" III. The question for the jury is, what was in fact the quantity of ice taken on the writ,--and the plaintiffs are liable only for the quantity actually taken on the writ without regard to the quantity stated in it.

" IV. That the allegations in the writ are not prima facie evidence of either the quantity or value of the ice replevied in this case."

Plaintiffs except to the instructions to the jury in the charge relating to the subject matter of the several requests.

They also except to the following paragraphs in the charge: " The defendant is entitled to the value of that ice, at the time it was taken, and where it was situated, for any lawful use to which it could be put. If it was valuable to use there, he is entitled to its value for use. If it was valuable for sale, he is entitled to its value for sale. If it was valuable to send to market, he is entitled to whatever value it bore at the time and place for any market, not what it might bring at another market,--I don't mean that --but its value at Boothbay, on August 13, 1870, for any purpose to which it might be put.

" In cases like this I do not understand the rule to be that the jury must be confined as a measure of value, to what the commodity might have been sold for if put in the market on the precise day it was taken. For example, the keeper of a hotel at one of our interior lakes, or a summer watering place, puts up a hundred or two hundred tons of ice for his own use during the summer season. If that ice is taken in the month of April, it bears no value for sale at that time, and if he had put it on the market, and endeavored to sell it at the time taken, he might not have been able to procure a farthing for it, but still it has a value for use, and if taken, the owner of the property would be entitled to the fair value at the time taken, for use, or for any lawful purpose to which he might put it.

" You have a right to consider also whether there was a large supply of ice, or a small supply of ice, at that time for the markets calling for it. You may consider the state of the markets, and the demand for ice at that time. You have a right to consider whether the market was a rising or a falling market."

And plaintiffs also except to the following paragraphs and instructions in the charge:

" Now you have heard the discussion of the evidence on this subject of quantity. The allegations in the writ have been commented on. I instruct you that the alleged quantity in the writ is not conclusive on the plaintiffs in this case. You may consider it as evidence of the declaration of the plaintiffs. If it was a mistaken declaration, it is not binding on the plaintiffs. You may regard it as a piece of evidence tending to show quantity. It is said that it does not appear by the officer's return that all the ice described in the writ was taken. The officer states in his return that he took all the ice that he found, in both houses. You can regard the officer's return as evidence on that point. I instruct you not to regard it as evidence of the quantity by weight, on a subsequent day.

" You must determine, if you think it material, whether the same quantity of ice was found in the houses on the 13th, which was there on the 12th, because the writ bears date on the 12th, and must be regarded as made on the 12th, and so can only be regarded as evidence of quantity in the houses on the 12th."

Also the following on question of value:

" Evidence has been introduced, which you may consider as bearing upon it, of the value upon other days in August.

" The allegation in the writ is, that the ice in those ice-houses, estimated at 3,800 tons, was worth $15,000, on the 12th day of August, 1870. If you find the quantity described in the writ, there at the time of taking, then I instruct you that this allegation of value estops the plaintiffs. But if you find there was no such quantity there, only one-half, three-fourths, seven-eighths as much, I instruct you that you may regard the allegation of value, as evidence tending to show its value."

Plaintiffs also except to that part of the charge giving instructions to the jury on the subject of damages for preparations made to remove the ice, and especially to this: " You will consider, gentlemen, whether the owner of the ice having made his preparations to remove it, and got as far as this place (Wiscasset) with his teams, for that purpose, might not reasonably wait until the writ was served upon him; whether he was bound to know that the suit would not be abandoned, and the writ not served upon him, and to take notice before the service of the writ.... I do not think that the defendant was bound to take notice of the pendency of the suit, until the fact that the property was taken on the replevin writ, and held by the officer, was communicated to him by the officer, or the writ served on him."

And as to the defendant's compensation for the use of his own team: " If it was reasonable and proper for him to incur the expense of bringing his horse and carriage here, and keeping them here during the removal of the ice and the selling of it, then that was a part of the expense, incurred in the preparation for removal, and he is entitled to compensation."

Plaintiffs also except to all other parts of the charge; and to all rulings made during the trial.

The exceptions, to the admission and the exclusion of evidence, which were considered by the court, sufficiently appear in the opinion.

A. P Gould & J. E. Moore, for the...