I have been compelled to respectfully dissent from the views of the majority of the court in this case. I believe the judgment ought to be reversed and the cause remanded, because the verdict failed to find the value of the back bar, the counter, and the ice-chest separately. The rule as established in this State requires such a finding in a suit of this kind, and a failure in this respect is held to be a cause for reversal. Blakely v. Duncan, 4 Tex. 185; Hoeser v. Kraeka, 29 Tex. 450 [29 Tex. 450]; Cook v. Halsell, 65 Tex. 1; Cole v. Crawford, 69 Tex. 124. *Page 264
In Blakely v. Duncan, where two of the negroes sued for were valued together in the aggregate, the court says: "In actions of this kind [for the recovery of specific chattels], for property susceptible of a division and a distinct valuation, it is believed that the rule of law is well settled, that the jury should find the separate value of each; and the reason is obvious, that as the judgment is in the alternative, and as the property may be surrendered in discharge of such valuation, if it was not so assessed, it would be impossible to deliver part without delivering all the property so assessed in the aggregate."
Because of the error in the verdict, the judgment was reversed, though there does not appear to have been any exception to the verdict at the time of its return into court.
The case of Hoeser v. Kraeka was a suit for specific chattels The jury returned a verdict for $500, the value of all the property, and $50 for its use. The verdict was held to be erroneous upon the authority of Blakely v. Duncan; the court declaring that "the defendant should have the privilege of returning any one or more of the articles recovered, instead of paying its value, and vice versa; but this would be denied him, unless the separate value of each article was found." For this and another error in the charge, the judgment was reversed.
The case of Cook v. Halsell was a suit on a promissory note, secured by chattel mortgage on chattels, which were sequestered by plaintiff and replevied by the defendant. A verdict was returned for plaintiff for the amount sued for. The court rendered judgment accordingly and foreclosed the mortgage, and also rendered judgment against the principal and sureties on his replevy bond for $969, which the court said was the value of the property assessed by the jury, ordering that if the property were not delivered to the sheriff, plaintiff should recover $969, the value of the same, of the principal and sureties on the replevy bond, as assessed by the jury. It was held that "the verdict should have found the value of the various items of property replevied by appellants, as they had the right by the statute to return the whole property in satisfaction of the judgment or a part of it, in satisfaction pro tanto;" citing Revised Statutes, section 4502; Hoeser v. Kraeka; Blakely v. Duncan; and Bennett v. Butterworth, 8 Howard (U.S.), 128.
The familiar statute referred to provides that the defendant replevying property sequestered shall have the right, within ten days after judgment against him, to deliver to the sheriff the property replevied, or any portion thereof, and provides that the value of the property so delivered shall be credited on the judgment. Rev. Stats. 1895, sec. 4877.
The statute declaring the right of a defendant replevying goods sequestered is no more a right than one existing at law, and if a verdict should in the one case estimate the value of goods recovered, so as to provide for the privilege of returning them or a part thereof in satisfaction pro tanto of the judgment for value, it is equally necessary that the verdict should so provide in the other case. The statute does not require *Page 265 the verdict, in cases of replevin, to find the separate value of the articles replevied. If it did, there might be a difference in the rights of the defendant in the two cases. The statute merely declares a right, as does the law, and it as perfect in the one case as in the other.
This right of the defendant to return all or a part of the goods adjudged to plaintiff on recovery in a suit for them in kind, or for their value in the alternative, is not questioned. It is a right well settled.
The suit at bar was for the recovery of certain named chattels, and in the alternative, if the goods were not forthcoming in answer to the judgment, for their value. The prime object of the suit was the recovery of the property; it was only in the alternative stated that the value was claimed. The plaintiff can not complain if he is allowed to recover only according to his prayer. If he had seen proper, he could have sued for a conversion of the goods, and recovered their value, and in this way have compelled the defendant to keep all the goods. Having brought his suit for the recovery of the goods, and in the alternative for their value, he must so recover, if he recovers at all. In such event, it is the right of the defendant, if judgment go against him, to return the goods or a part of them, and if he deliver only a part of them, he must pay the value of those he does not or can not deliver. Plaintiff having elected to sue for the goods, he should abide by the established rules governing his and defendant's rights. The defendant in such a suit is not required to set up his rights; they arise from and depend upon the plaintiff's suit. Plaintiff's recovery is limited by the character of his suit. Hence the rule that the verdict must conform to the rights resulting from the suit, both his own and those of the defendant. It is plaintiff's duty to provide for his verdict and judgment, according to the nature of his action. The rights of defendant belong to and inhere in the nature of the plaintiff's action. They are not of a defensive character and required to be set up and proved.
When plaintiff sues for the recovery of goods described, and in the alternative for their value, the law, if he is the owner, will grant him what he claims and no more. If some of the specific articles are returned, he should take them, and take the value of those not returned. If the part returned is diminished in value because of the absence of the other part, then the law would protect him by declaring that all of them constitute but one thing, useful only for one purpose. But this fact must be shown to raise the exception. No such fact is shown in this case. The bar, the counter, and the ice-chest are different items sued for, and for aught that appears, are as valuable separated as taken together as a whole. The articles replevied in the case of Cook v. Halsell were many of them similar to those sued for in this case — one billiard table, one pool table, one safe, one lunch stand, one large mirror, eight pictures, one silver pitcher, ten demijohns, twelve fancy bottles, twelve dozen bar glasses including fancy glasses, all of which seem to constitute a bar outfit — and in that case it was held that the verdict, failing to value each article separately, was erroneous. *Page 266
Chitty says: "The nature of the action (detinue) requires that the verdict and judgment be such that a specific remedy may be had for the recovery of the goods detained, or a satisfaction in value for each several parcel, in case they or either of them can not be returned; and therefore, when the action is for several chattels, the jury ought, by their verdict, to assess the value of each separately; and if the jury neglect to find the value, the omission can not be suplied by writ of inquiry." 1 Chit., 139.
This author also says it is not necessary that the value of the articles be stated separately in the declaration, though the jury should sever the value of each in the verdict. Id. It is a matter of proof arising from the nature of plaintiff's suit, and it devolves upon him to make the proof necessary to the verdict.
The force of the reasoning that defendant ought not to be heard to complain that he is by the verdict in this case compelled to keep the property he unlawfully holds, disappears, when we come to consider that plaintiff has sued to recover the property itself, itemizing it, or in the alternative for its value. The correct rule is to grant him what he asks for and is entitled to, and no more.
The verdict in this case can not be said to cure its own defects and the defects in the proof, because it was excepted to at the time it was returned into court. The error was insisted on by motion for a new trial, and is now urged.
By reversing the case the proof can be made and all difficulty removed, with justice to all the parties, and I believe it ought to be done.