Crabbs v. Koontz

Robinson, J., delivered the opinion of the Court. The questions in this case arise in a suit on a replevin bond. The property replevied was a steam engine, separator and clover huller, and the judgment in replevin was for the defendant for a return of the property and costs. The property was returned and the costs of suit were paid, and the defendant in replevin now sues on the bond to recover damages in consequence of being deprived of the use of the property pending the replevin suit.

The question first to he considered is, whether the opinion of witnesses is admissible in evidence to prove the prospective profits which 'the plaintiff might have realized from the use of the engine and thresher, if the same had not been taken from his possession under the ⁶¹ writ of replevin. -Such evidence as this, the mere opinion of witnesses as to future profits to be realized from operating a steam engine and thresher, is too uncertain and speculative to furnish a safe guide to the jury in estimating damages. Future profits depend of course upon the quantity of grain to be threshed, the price to be paid per bushel, the expenses of operating the engine and thresher—in a word, upon all the chances and hazards of business, and the opinion of witnesses in regard to such profits is at best but a mere conjecture. One may, no doubt, recover for loss of profits resulting directly and necessarily from the wrongful act of another, provided such profits be proved with reasonable certainty. And so it was decided in Otto vs. Werner, 40 Md., 15 , and Lawson vs. Price, 45 Md., 123 .

But the mere opinion of witnesses as to future profits, is wanting in that element of certainty which the law requires as the basis for estimating damages. Abbott vs. Gatch, 13 Md., 314 . There was no error, then, in the rulings of the Court in the first to the fourteenth exception inclusive. We agree also with the Court, in its rulings on the evidence offered by the defendants.

The replevin bond being one of indemnity only, the defendants had the right in mitigation of damages to show, that the engine and thresher did in fact belong to Kooiitz the plaintiff in replevin; and that the title thereto was not determined in the replevin suit. Walter vs. Warfield, 2 Gill, 216 ; Cumberland Coal & Iron Comp. vs. Tilghman, 13 Md., 74 ; Seldner vs. Smith and Wife, 40 Md., 602 . The title to personal property may be in one and the right of possession in another. To maintain an action of replevin, the plaintiff must prove his right to the possession of the property at the time of issuing the writ, and a judgment for the defendant does not necessarily determine the title to the property.

And ⁶² in an action on the bond, the obligors may show in reduction of damages, that.the title to the property was not passed upon in the replevin suit, and that the right of the defendant is merely a possessory right. The justice of this well settled rule is strikingly illustrated in this case. Here Koontz the plaintiff in replevin, sold the engine and thresher to the defendant for the sum of eight hundred dollars on certain conditions, that is to say, ■ he made a conditional sale, by the terms of which the title was to remain in Koontz until the whole purchase money was paid, and the conditions of the sale not having been complied with, he replevied the property. The-replevin suit was tried before the Court, without the intervention of a jury, and the Court being of opinion that the plaintiff ought under the circumstances to have made a demand on the defendant for a return of the property, before suing out •the writ of replevin, judgment was rendered for' the defendant.

In other words, the Court decided that the defendant was entitled to the possession of the projDerty, until a demand was made by the plaintiff for its return. Now in an action on the replevin bond tq recover damages alleged to