CLARK, J., dissents. The plaintiff complained for the wrongful detention of, and demanded judgment for, the property (which was detained by defendants under replevin bond), if a return could be had, for $900 damages and costs, etc. The defendants answered that they had bought the property for $800; denied that it belonged to the plaintiff or had been damaged; pleaded a payment of $100, a set-off for $35, and a counterclaim for damage done by pulling down a house in removing the machinery.
At the Spring Term, 1886, a trial by jury was had, and the verdict was set aside by consent of parties. At the Fall Term, 1886, the issues were tried by a jury, and a verdict was rendered on only two of the six issues, as follows:
1. Is the plaintiff the owner of the sawmill and engine described in the pleadings? Yes.
2. Is the plaintiff entitled to the immediate possession of said sawmill and engine? Yes.
3. What was the value of said sawmill and engine at the time of the contract of the defendants to buy?
4. What sum has been paid by defendants on the contract price?
5. What is the value of the sawmill and engine now?
6. What damage, if any, has the plaintiff sustained by reason of the detention of said sawmill and engine?
The actual value placed upon the property by the plaintiff's affidavit, upon which the first order of seizure was made, was $800, and the defendants on 28 November, 1884, gave the usual bond in the sum of $1,600, conditioned for the safe return of the property, if such delivery should be adjudged, and for the payment to plaintiff of such sum as he might recover against the defendants. At the same term when the said partial verdict was rendered it was adjudged by the court that the plaintiff recover of the defendants the sum of $666.63, with interest on $587.08 from the first day of the term till paid, together with (502) costs of action, etc., and that unless said sum should be paid before 1 December, 1886, then the commissioners therein named should sell the property on certain terms and apply the proceeds to the payment of the judgment and costs, and the residue, if any, to the defendants.
At the Spring Term, 1887, the commissioners reported that the property had been sold in pursuance of the order for $250, and the said sum had been applied to the payment of the judgment, and on motion the said report was confirmed.
At the February Term, 1888, it was, on motion for summary judgment on the defendant's replevin bond, adjudged by the court that the plaintiff recover of the defendants and the sureties the sum of $1,600 *Page 343 (the penalty of the bond), to be discharged upon the payment of $448.59, with interest from the first day of the term, with costs, etc.
Judge Gilmer presided at this term.
Thereupon, at said February Term, 1888, before Gilmer, J., the defendants moved to set aside as irregular and contrary to the course of the court the judgment rendered at the Fall Term, 1886, by Connor, J., and from the refusal of the said motion, appealed to the Supreme Court.
It was held by this Court (103 N.C. 276, Justice Davis delivering the opinion) that it was not in accordance with the course of the court to render any judgment upon the findings or response to two issues, which determined only the title and right of possession, except for restitution, and that the judgment for damages that was rendered not being authorized by The Code, section 326 (as amended by the Act of 1885, ch. 5) and section 431, the jury must find, preliminary to a final judgment, upon at least one of the issues not passed upon at the former trial. Accordingly, another trial was had, and the case was heard on appeal in this Court at February Term, 1892 (110 N.C. 220), when attention was called to the fact that the defendant had set up as a defense that he became possessed of the property under a contract of sale for $800, and had made certain payments on the contract price. The (503) court held that where a defendant proved such an agreement to sell, and it also appeared that the property had been sold and was beyond the control of the court, while ordinarily the value is assessed under the statute, as amended, "as of the time of the tortious taking or wrongful detention by the defendant," with interest from that time, in such a case the purchaser would be treated as though the original taking had been tortious instead of permissive, and the damage would be assessed as of that date. And it was declared in that case, at page 227, citing Taylor v.Hodges, 105 N.C. 349, that where the owner reserves title in himself in a contract for sale, or takes a reconveyance by way of mortgage, "though he has the right to demand possession on default in the payment of the price or breach of the conditions of the mortgage, the sureties upon a final adjustment of their liabilities may justly demand that the jury shall find what was the price agreed upon between the parties for the property, and what sums had been actually paid." This was declared upon the principle announced in Walsh v. Hall, 66 N.C. 233, and substantially reaffirmed inWilson v. Hughes, 94 N.C. 182, that the court will look at the transaction that is being investigated before it, without regard to the form or manner of action. The history of the transaction in this case was fully developed before the court. It was admitted on the trial that $800, the sum alleged in plaintiff's affidavit to be the value, and in the defendants' answer to be the price agreed upon at the time of the sale, was in fact the contract *Page 344 price, and so, in response to the issue, was entered. The amount of the payments was found in response to another issue, and the balance still due after deducting the partial payments was the answer to the third issue. This last sum was, therefore, the amount that still remains unpaid of the original purchase money, with interest allowing for the two partial payments, with interest on each, found by the jury (504) to have been made, and for the sum realized by the sale made by the commissioners and paid to the plaintiff, with interest thereon. So that upon the findings of the jury judgment was rendered against the defendants' sureties for $1,600, the penalty of the bond, to be discharged upon the payment of the precise amount of the original purchase money still remaining unpaid, with costs. This was an equitable adjustment of the whole matter, and was in exact accord with the opinion in Hall v.Tillman, 110 N.C. 226-227.
From the refusal of the court, Judge Gilmer presiding, to set aside the judgment first rendered by Judge Connor, the appeal was taken, which was first heard in this Court, and it appears (103 N.C. 281) that the Court declared there was error, and sent the case down for trial upon additional issues, only the plaintiff's title and right of possession having been determined by the previous findings. The sale which had been made under the same order and subsequently confirmed was left undisturbed, the property having passed to a purchaser, and the proceeds having been paid to the plaintiff and credited on his judgment. It was this question that was declared by this Court (110 N.C. 225) to have been adjudicated. The property having been placed beyond the control of the court, or the reach of the parties, the question of deterioration was no longer a living issue. The defendant had contracted to pay $800, and set up the contract in the answer. When he allowed the property to be sold and the proceeds applied to his debt without objection, it was equivalent, for the purposes of this appeal, to an agreement that it should be so disposed of. If the court was not in error, as we hold, in requiring the jury to ascertain as a basis of the judgment the contract price with interest, less payments, then the testimony offered, tending to show the value of the property at the commencement of the action, was irrelevant and incompetent. For the same reason the offer to show the value at the October Term, 1886, when the property was (505) ordered to be sold, or at the commencement of the action, was properly refused, and it was not error to decline to submit issues involving the question of value at these periods.
In view of the original contract set up in the answer, and the subsequent history of the transaction, this was a cause in which the court could not properly have given any other construction than that the net damage due plaintiff was the contract price, less the payments made by *Page 345 the defendants and the proceeds of sale by order of the courts, and under the statute the proper judgment was that given.
The material portion of the undertaking of the defendants was as follows: "Now, therefore, we, J. R. Jones, of Chatham County, and D. A. Palmer, of Chatham County, undertake in the sum of sixteen hundred dollars that if said property be returned to defendants it shall be delivered to plaintiff if said delivery be adjudged, and that the plaintiff shall bepaid such sum as for any cause may be recovered against the defendants inthis action." Accordingly, the plaintiff recovered the amount still due on the original contract price. Surely this recovery falls within the express letter of the undertaking. The decision of the case as to the sureties is founded upon the language of the undertaking, and it may be that under another undertaking, differently drawn, the liability of sureties would be limited to actual value. No such case is before us. No error, and the judgment is
Affirmed.