On a writ of replevin being issued the United States Fidelity and Guaranty Company gave its bond to the appellants (defendants in the action of replevin) conditioned for the return of the goods which were the subject of the replevin. The writ was executed and the goods delivered to *Page 435 the plaintiff in that action. Subsequent proceedings resulted in the entry of a judgment in favor of the defendant for the return of the goods and for damages on a counter-claim for breach of contract.
The replevied goods were never returned and the present action was brought on the bond. The case was heard by the learned trial judge without a jury upon a stipulation of facts and resulted in a judgment in favor of the defendant. From this judgment the plaintiffs appeal.
On the facts as above recited we think the plaintiffs were entitled to judgment. The learned trial judge seems to have considered the action to be for the recovery of the damages on the counter-claim alone, but the record does not disclose this to be the fact. From the stipulation it appears that there were two phases to the judgment in the original action, one deciding the title to the goods; the other disposing of an independent claim for damages as above indicated. It is said by the respondent in its brief that there was never any question that the goods were the property of the plaintiff in the replevin suit, but the record speaks to the contrary. The judgment was for the "return of the goods and chattels." Failure to make the return in accordance with the obligation of the bond constituted a breach of that instrument and a liability thereon.
The appellant cannot of course rest a recovery against the surety on the independent action for a counter-claim tried out (perhaps for convenience) in the replevin action, but it is entitled to be reimbursed for its loss resulting from the failure of the principal on the bond to return the goods in accordance with the judgment as appears from the record. If, as the respondent contends, the judgment does not represent the true finding in the trial of the replevin action, the remedy is either by redress in the trial court, or by direct appeal from that judgment to this court.
The judgment is reversed and a venire de novo awarded, or a retrial before the court without a jury if the parties so elect. *Page 436