Hartford Accident & Indemnity Co. v. State

Hammond, J., delivered the opinion of the Court. The appeal in this case requires a decision as to whether the judgment in a replevin suit in the Circuit Court for Charles County fully determined the question of title and is binding in a subsequent suit on the replevin bond, against the surety. John A. Brickley, owner of a farm in St. Mary’s County, known as De La Brooke Manor, sold the place by contract dated June 27, 1949, to an Indian known as Will Brooks — Chief Hawk Eagle. Of the 300 acres sold, some 240 acres were in timber.

The contract provided that the Indian Chief should pay a deposit of $1,000.00 on account of the purchase price of $16,000.00, and should pay an additional $4,000.00 in four months, at which time settlement was to be made. The balance of ⁴³⁶ the purchase price was to be secured.by mortgages. If the purchaser failed to settle, as provided, the contract said that “the deposit herein provided for may be forfeited at the option of the seller, in which event the purchaser shall be relieved from further liability hereunder, or without forfeiting the said deposit the seller may avail himself of any legal or equitable rights which he may have under this contract.” When the settlement date arrived,' the Indian Chief was unable to pay the $4,000.00 called for by the contract. Brickley accepted $2,500.00 on account, permitting the purchaser to enter in possession and afforded him a short additional time to dispose of other property owned by him, so that he could make settlement.

Early in 1950, no settlement having been tendered, it was agreed that Brickley should attempt to find a buyer for the timber on the place and apply the proceeds to the contract. The Indian Chief remained in possession. During this period, John W. Ritter opened negotiations with Brickley for the purchase of the timber. He made a written offer which was orally refused by Brickley.

About the first of July, 1950, Brickley learned that Ritter had entered upon the land, had commenced cutting the timber, and was hauling it to Waldorf in Charles County. He notified Ritter to stop cutting. Being informed that some of the logs cut had been taken to Waldorf, Brickley instituted an action of replevin against Ritter in the Circuit Court for Charles County, recovered possession of the logs and sold them for $1,077.69. After the replevin action had been brought, Brickley and the Indian Chief entered into a contract entitled “Cancellation of Contract”.

This agreement recites the contract of sale of June 27, 1949, and the subsequent default by the purchaser, authorizes the purchaser to remove the crops, requires Brickley to refund $3,100.00, and leaves the purchaser in possession, rent free, until the farm is sold. At the trial of the replevin case, Brickley was the only witness. After hearing his testimony and consid ⁴³⁷ ering the contract of sale and the cancellation contract, which were offered in evidence, the Court granted a motion for a directed verdict made by Ritter, the defendant. Judgment was then entered “in favor of defendant and against plaintiff for costs”.

Some time later, Ritter and Miller & Bradley, Inc., to whom Ritter had agreed to sell the logs which had been replevied, sued the Hartford Accident & Indemnity Co., Inc., the surety on the replevin bond filed by Brickley in the replevin suit, because Brickley had not prosecuted the writ of replevin with effect. Ritter subsequently died, and Virginia Ritter, his administratrix, was substituted. She, with Miller & Bradley, Inc., are the appellees in this appeal and the Hartford Accident & Indemnity Co., Inc., is the appellant, the appeal being from a judgment in the second suit in favor of the plaintiffs, the appellees here. At the trial of the suit on the replevin bond, the proceedings in the replevin case were introduced in evidence, and the Court, hearing the case without a jury, ruled that in the replevin case there was “a determination that Brickley was not entitled to the timber or logs mentioned in the replevin writ; that the Indian Chief did have a right to sell, and that Ritter did purchase. . .

So the question now before the Court is, how much, if any, is due on the bond filed in connection with the replevin suit?” The Court refused a proffer from John A. Brickley that the Indian Chief had wholly defaulted, and the other facts as to Ritter’s offer to purchase and Brickley’s refusal, and that thereafter, Brickley found Ritter seated in an automobile talking to the Indian Chief on the farm, in the presence of another Indian, Chief Turkey Tayac, and that Brickley thereafter received a telephone call from Chief Turkey Tayac, telling him that Ritter had gone on the farm and cut the timber. A similar proffer from Chief Turkey Tayac was also overruled. Judge Digges said: “We overrule the proffer, with the observation that those facts, together with some other facts, were before the Court in the replevin case, John A. Brick ⁴³⁸ ley v. John W. Ritter; and in that case the Court decided that the Indian Chief had a right to sell to Ritter and did sell.” The damages claimed in the declaration by Ritter were $548.60, arrived at by computing the value of 20,648 board feet of logs at $75 per thousand, the price at which Miller & Bradley, Inc. had agreed to buy them, less $1,000.00 advanced on the price by that corporation. There is no dispute that there were 20,648 broad feet cut and sold.

Miller & Bradley, Inc. claimed $1,591.20, made up of the $1,000.00 advanced by them, net profit at the rate of $25 .per thousand board feet, and interest of $75.00. Judgment was entered for Miller & Bradley, Inc. in the amount of $1,516.20, the amount of the claim without interest, and judgment was entered in favor of Virginia Ritter, Administratrix, for $342.12, representing the $548.60 claimed, less $206.48, or $10 per thousand, which was the amount mentioned in the contract of June 27, 1949, that the Indian Chief was to pay Brickley for any timber he cut. The appellant argues that the Trial Court erred in ruling that the replevin action was conclusive as to the title of the logs which have been replevied. It bases its argument on two grounds — first, that a judgment in replevin which does not comply with Art. 75, Sec. 129, Code of 1951, in that it does not assess the value of the property and damage, if any, is not a final, appeal-able judgment, but merely the equivalent of a writ of retorno habendo; and second, that judgment in the replevin suit “could not have determined that title was in defendant Ritter because there was no evidence at any time that he had either title or right of possession.” We think the judgment in the replevin case was a final judgment and conclusive and binding on Brickley.

The general rule is that the action of replevin does not necessarily try the title to the property replevied, as the action is possessory, and unless the title to the property was put in issue in the replevin suit, the defendant in the suit on the bond, (the plaintiff in the replevin suit) may ⁴³⁹ prove his ownership or title to the property. If, however, title to the property was in issue in the replevin suit, judgment there is conclusive as to title in the suit on the bond. Rowan v. State, 172 Md. 190 -198, 191 A. 244 . The cases illustrate the difference in the two situations.

In Seldner v. Smith, 40 Md. 602 , the question was whether a sale of goods was made under such representations as to justify the claim of the vendors that they were entitled to annul the sale and retake the goods. The rebuttal by the defendants was that the goods had been fairly purchased. The Court said: “. . . it appears that title to the goods was put in issue and no evidence was offered by either party, except that which tended to support his title. We are therefore of opinion that under the peculiar circumstances of this replevin case, the verdict and judgment were conclusive as to the want of title of the plaintiffs in the replevin, and that the question of title could not be re-opened in this suit.” Cumberland Coal & Ice Co. v. Tilghman, 13 Md. 74 .

An example of the other situation is found in Crabbs v. Koontz, 69 Md. 59 , 13 A. 591 . There a steam engine and thresher were sold conditionally by Koontz, title to remain in him until the whole purchase money was paid. The condition of the sale not having been complied with, he replevied the property. The Court, sitting without a jury, ruled that Koontz, the plaintiff in replevin, ought to have made demand on the defendant for the return of the engine before resorting to replevin, and, for this reason, judgment was rendered for the defendant.

This Court said: “In other words, the Court decided that the defendant was entitled to the possession of the property, until a demand was made by the plaintiff for its return.” This Court further held that the replevin bond, being one of indemnity only, the defendants had the right, in mitiation of damages, to show that the engine and thresher did in fact belong to Koontz, and that the title thereto was not determined in the replevin suit, but ⁴⁴⁰ the right of possession only. This being so, only nominal damages were recovered. See also, Rowan v. State, supra. It seems clear that the question of title was definitely at issue and adjudicated in the replevin suit in this ease: The right of possession, as such, was not involved.

A declaration filed by Brickley complains that the defendant Ritter “took and unjustly detained the plaintiff’s goods”. Ritter’s pleas were: 1, that he did not wrongfully take and detain the property; 2, that the property in the goods was in the defendant; and 3, that the property in the goods was in Miller & Bradley, Inc. Mr. Poe, in Vol. 1 of Pleading and Practice, Tiffany Ed., Sec. 631, says that the standard pleas in replévin are non cepit “and also the plea of property in’ the defendant, and sometimes also, in a third party. Tliese pleas áre not inconsistent. Under them, the burden is cast upon the plaintiff to prove his own title.” See Burrier v. Cunningham Piano Co., 135 Md. 135, 142 , 108 A. 492 ; Baltimore & Ohio R. Co. v. Rueter, 114 Md. 687 , 80 A. 220 .

Brickley filed a replication, alleging that the property in the goods “was in the plaintiff, John A. Brickley.” Brickley, by his testimony, attempted to meet the burden of proving his title and possession. He testified to much, if not all, as the Court found in the second