Opinion
No. 5132.
Argued October 1, 1963.
Decided December 30, 1963.
1. A judgment for the defendant in a replevin action, without more, implies no direction for the return of the property or for the payment of damages, and a literal restoration of the status quo is unnecessary.
2. In actions of replevin justice and convenience of procedure in avoidance of circuity of action may properly warrant incidental orders in favor of the party who does not prevail.
3. The statute (RSA 536:6) providing that in replevin actions a judgment for the defendant is to be accompanied with such further damage as may be awarded does not require an award of damages to the defendant which will result in unjust enrichment.
Replevin by the plaintiff against the defendants Ellen Jane Cutter and Bayside Distributing, Inc. to recover a 1958 Mercury automobile. The plaintiff is engaged in the financing of motor vehicles and purchased what purported to be a conditional sales contract in the usual course of business in good faith with no notice of any existing infirmity thereto. A bond was filed by the plaintiff in connection with the replevin action. Trial by the Court (Sullivan, J.) resulted in a verdict for both defendants. But the Court found as a fact and ruled as a matter of law that no damages were to be assessed with respect to the replevin bond given by the plaintiff. The defendants' motion to set aside that portion of the verdict which "assesses no damages with respect to the bond executed" was denied and the defendants' exceptions thereto were reserved and transferred.
In March and April 1958 Bayside Distributing, Inc. (hereinafter called Bayside) traded a 1955 Packard automobile with Howe Motor Sales, Inc. (hereinafter called Howe) for a 1958 Mercury. The allowance on the Packard was $1,650, leaving a balance of $1,600 to be paid to Howe by Bayside. This balance was to be paid in cash and in credit for motor oil to be sold by Bayside to Howe. Howe purchased motor oil from Bayside to the value of $346.41 but discontinued business shortly thereafter and these oil bills, which were never paid, were carried in the company's accounts.
The 1958 Mercury was delivered to defendant Ellen Jane Cutter, wife of Ernest Cutter, who was the principal officer of Bayside, after she signed an incomplete conditional sales contract with Howe, the material provisions of which were in blank except the amount of the balance due of $1,600. Howe later typed in the material provisions. The plaintiff purchased the conditional sales contract from Howe in the usual course of business in good faith with no notice of the existing infirmity thereto.
The 1958 Mercury automobile was operated by Ernest Cutter, Ellen Jane Cutter, and employees of Bayside, and was used by the defendant Ellen Jane Cutter for personal errands from the time the automobile was delivered until it was replevied by the plaintiff in March 1959. During this period of eleven months the car was operated 29,000 to 30,000 miles with Bayside paying the expenses of the operation on a one hundred per cent basis insofar as taxes were concerned. Nothing has been paid on the balance of $1,600 by either of the defendants or by Ernest Cutter. The vehicle was sold by the plaintiff at public auction for $1,150.
The Court found that no negotiations for the sale of the 1958 Mercury automobile were conducted between Howe and the defendant Ellen Jane Cutter and that Bayside had never executed or authorized the execution of the conditional sales contract with Howe.
Burns, Bryant Hinchey and E. Paul Kelly (Mr. Kelly orally), for the plaintiff.
Fuller, Flynn Powell and Thomas M. Dudley, Jr. (Mr. Dudley orally), for the defendants.
Since there was a verdict for both defendants in the replevin action, they claim that they are entitled to damages under the replevin bond as a matter of law. There was authority for this view in Kendall v. Fitts, 22 N.H. 1, 9, 10, where the rule was laid down as follows: "In the action of replevin, damages should always be assessed, whether the verdict be for the plaintiff or defendant. If the verdict be for the defendant, the damages should be for the value of the property taken; and, in case they be not paid, together with the costs of suit, resort is to be had to the replevin bond." However, this case was overruled in an opinion by Judge Doe in McKean v. Cutler, 48 N.H. 370, 374, in which he stated that damages were not essential to a valid judgment in replevin or other actions and, "that the decisions in Kendall v. Fitts cannot be sustained, and that no damages are necessary to the rendition of judgment on this verdict." The latter opinion correctly affirms the basic proposition that damages are awarded either to plaintiffs or defendants only if they are entitled to them. "Generally, the defendant is entitled to the value of the property, provided he shows a right to it; but there is no rule which requires the court to award damages to which the party appears not to be entitled." Sanborn v. Leavitt, 43 N.H. 473, 474.
A judgment for the defendant in a replevin action, without more, implies no direction for the return of the property or for the payment of damages. Annots. 65 A.L.R. 1302; 144 A.L.R. 1149; Rosen v. United States Rubber Co., 268 Mass. 403. We are not left with implications in the present case since the Court found upon the evidence submitted as a fact and ruled as a matter of law that the defendants were not entitled to an award of damages in this replevin action. The plaintiff in a replevin action must prevail on the strength of his own title and not on the weaknesses of his opponents. Yet there may be many instances where a judgment for the defendant does not and should not include a judgment for the return of the property or the award of damages. See Commercial Credit Corporation v. Flowers, 282 Mass. 316. The plaintiff could not replevy the automobile from the personal defendant Cutter because the title was in Bayside. Likewise the plaintiff could not replevy the vehicle from Bayside because the conditional sales contract had been executed by the personal defendant Cutter and not her husband who was the principal officer of Bayside. The Court by refusing judgment for the plaintiff in the replevin action and by refusing to assess damages in favor of the defendant avoided circuity of action. We shall now examine whether the Trial Court's action is supported by the evidence.
In this state replevin has become impregnated with equitable principles without strict regard to its common-law limitations. "In replevin, justice and convenience of procedure in avoidance of scattered and separate litigation may properly warrant incidental orders in the defendant's favor when he is not the prevailing party." Derry Loanc. Co. v. Falconer, 84 N.H. 450, 454. The following quotation from Vernon Corp. v. Granite c. Co., 93 N.H. 315, 316 is indicative of the flexible approach used in replevin actions in this jurisdiction: "In replevin suits, it is frequently a matter of no small difficulty to properly protect the interests and to equitably adjust the rights of parties. Such suits are said to be in some respects sui generis, and the inclination of the courts . . . has been to give to them a flexibility sufficient to meet exigencies and adjust all equities arising in such actions." In a repossession proceeding the equities of all parties affected consistently have been taken into consideration. Franklin Nat. Bank v. Austin, 99 N.H. 59; Caraway v. Jean, 97 N.H. 506.
In the present case the defendants, individual and corporate, have made no payments on the balance due for the sale of the 1958 Mercury automobile. The automobile had been operated for a period of eleven months for some 29,000 — 30,000 miles, including business trips for Bayside and a vacation trip for the individual defendant and the corporate officer. There was evidence that a rental of an automobile for this period and for that mileage would exceed the amount of any equity that the defendants had in this automobile. So far as appears from this record any judgment for damages for the defendants would result only in unjust enrichment. We conclude that the Trial Court properly refused to award damages in this situation. Hazelton Company v. Southwick Constr. Co., 105 N.H. 25. Here, as in Franklin Nat. Bank v. Austin, 99 N.H. 59, 62, "Literal restoration of the status quo is unnecessary." Under RSA 536:6 a judgment for the defendant is to be accompanied "with such further damages as may be awarded to him." (Emphasis supplied). The award of damages is not compulsory and necessarily depends on the evidence in the case and the equities of the respective parties.
Judgment on the verdict.
All concurred.