(- Cal. - 183 Pac. 442.) Appeal - conclusiveness of finding Damages - replevin of damages. 4. A special verdict fixing the value of the use of the property in replevin is conclusive upon appeal if the evidence is not in the record. special damages. 5. A defendant in replevin is not entitled, upon failure of the suit, to recover interest on the value of the property taken, if special damages for the taking and withholding are awarded. [See 23 R. C. L. 911, 912.] APPEAL by plaintiffs from a judgment of the Superior Court for Colusa County (Weyand, J.) vacating a judgment in their favor in a suit on a replevin bond. Reversed. The facts are stated in the opinion of the court. Lennon, J., delivered the opinion of the court: The plaintiffs herein sue on a replevin bond, Browning, the plaintiff in the replevin action, and Balsdon and Morris, his sureties, being joined as defendants. The property replevied consisted of a harvesting outfit. It was destroyed by fire while in the possession of Browning, who thereafter dismissed the replevin suit. The plaintiffs thereupon instituted this action and recovered judgment on a verdict awarding damages in the sum of $3,695. The verdict of the jury was accompanied by answers to certain questions submitted by the court, which indicated that the sum of $3,695 had been arrived at by adding the item of $920, representing the plaintiffs' damage for the loss of the use of the property, to the item of $2,775, representing the value of the property at the time it was replevied. On the defendants' motion, the court, by an order purporting to be made pursuant to the provisions of § 663 of the Code of Civil Procedure, vacated the judgment on the ground that it was inconsistent with and not supported by the so-called special verdict, and entered judgment for the plaintiffs in the sum of $2,775, with interest from the date of the replevin at 7 per cent yearly. The plaintiffs thereupon prosecuted this appeal upon a bill of exceptions containing the pleadings, the verdict, the original judgment, and the order appealed from, but which does not set forth or purport to set forth any of the evidence received in the case. Replevin-dis damages. In making the order complained of, the lower court apparently proceeded upon the theory that the plaintiffs' cause of action was to be viewed solely as one for wrongful conversion, and, pursuant to this theory, it applied the rule of damages prescribed by § 3336 of the Civil Code, and therefore eliminated the item of $920, representing the plaintiffs' damage for the loss of the missal of action use of the property. effect on In this the court was in error. By dismissing his action in replevin, Browning could not, and did not, deprive the plaintiffs of their right to recover such damages as they could have recovered in that action had it been prosecuted to judgment. Mills v. Gleason, 21 Cal. 274, quoted with approval in Clary v. Rolland, 24 Cal. 147, 152. It is expressly provided in 667 of the Code of Civil Procedure that "if the property [involved in a replevin action] has been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property or the value thereof, in case a return cannot be had, and damages for taking and withholding the same." A return of the property could not have been had in the replevin suit here in question. Had that action been carried to judgment, defendants, plaintiffs herein, would therefore have been entitled to a Damages-for wrongful replevin-taking and withhold ing. in judgment for the value of the property, not as damages for its conversion, but as a substitute for and in lieu of the property, and would, addition, have been entitled to a judgment for damages for the taking and withholding the property. Such, then, would have been the measure of the damages of the plaintiffs herein, had the replevin action proceeded to judgment, and such, therefore, should be the measure of their recovery on the bond. 34 Cyc. 1582-1585; 2 Sedgw. Damages, 9th ed. pp. 1433, 1434; Talcott v. Rose, Tex. Civ. App. 64 S. W. 1009; Sopris v. Lilly, 1 Colo. 266. Ordinarily, loss of use and other injuries resulting from the taking and withholding of personal property may be compensated by allowing the successful party in a replevin suit to recover interest on the value of the property from the time of the taking. There is no good reason, however, for holding that he is confined to interest as damages, if he can establish the fact that the value of the use of the property of which he was deprived exceeds the interest. Hunt v. Thompson, 19 Wyo. 523, 120 Pac. 181, 122 -confinement to interest. ANNOTATION. Right to damages as distinguished from interest for loss of use of property taken in replevin. I. General rule: a. In general, 478. b. Contrary doctrine, 481. c. Local variations of the rule, 481. II. Where no special damages shown: a. In general, 482. b. Theory of no damages, 482. III. Both value of use and interest, 483. IV. Miscellaneous, 484. 1. General rule. a. In general. The successful defendant in replevin is entitled to the value of the use of the property taken, when that value is shown. California.-NAHHAS v. BROWNING (reported herewith) ante, 476. Connecticut. Adams v. Wright (1902) 74 Conn. 551, 51 Atl. 537 (wagon). Georgia.-Bank of Blakely v. Cobb (1908) 5 Ga. App. 289, 63 S. E. 24; Underwood Typewriter Co. v. Veal (1912) 12 Ga. App. 11, 76 S. E. 645 (typewriter). Idaho. Sebree v. Smith (1888) 2 Idaho, 359, 16 Pac. 915 (mules); Cun ningham v. Stoner (1905) 10 Idaho, 549, 79 Pac. 228 (sheep). Illinois. Butler v. Mehrling (1854) 15 Ill. 488 (as stating the rule). Iowa.-Hartley State Bank v. McCorkell (1894) 91 Iowa, 660, 60 N. W. 197. Maine. Washington Ice Co. v. Webster (1873) 62 Me. 341, 16 Am. Rep. 462 (obiter). Massachusetts.-Boston Loan Co. v. Myers (1887) 143 Mass. 446, 9 N. E. 805 (household furniture and piano). Michigan. Burt v. Burt (1879) 41 Mich. 82, 1 N. W. 936 (horse, wagon, and harness); Hutchinson v. Hutchinson (1894) 102 Mich. 635, 61 N. W. 60 (team of horses). Minnesota.-Peerless Mach. Co. v. Gates (1895) 61 Minn. 124, 63 N. W. 260 (threshing machine); Williams v. Wood (1895) 61 Minn. 194, 63 N. W. 492 (threshing machine); Qualy v. Johnson (1900) 80 Minn. 408, 83 N. W. 393 (horses, wagons, etc.); Nash v. Larson (1900) 80 Minn. 458, 81 Am. St. Rep. 272, 83 N. W. 451. Missouri. Kreibohm v. Yancey (1900) 154 Mo. 67, 55 S. W. 260 (machines, etc.); Anchor Mill. Co. v. Walsh (1887) 24 Mo. App. 97 (wagons and harness); Gurley Bros. v. Bunch (1908) 130 Mo. App. 665, 108 S. W. 1109 (horse); Kieselhorst Piano Co. v. Porter (1914) 185 Mo. App. 676, 171 S. W. 949 (piano); Forsee v. Zenner (1917) Mo. App. —, 193 S. W. 975 (team). Nebraska. Schrandt V. Young (1901) 62 Neb. 254, 86 N. W. 1085 (sheep). New Hampshire.-Dickinson v. Lovell (1857) 35 N. H. 9. New York.-Allen v. Fox (1873) 51 N. Y. 562, 10 Am. Rep. 641 (horse); Ditmars v. Sackett (1894) 81 Hun, 317, 30 N. Y. Supp. 721 (horses, cattle, etc.). Oklahoma.-Thomas v. First Nat. Bank (1912) 32 Okla. 115, 121 Pac. 272, Ann. Cas. 1914A, 376 (horses); First State Bank v. Howell (1913) 41 Okla. 216, 137 Pac. 657 (mules). Tennessee. Stanley V. Donoho (1886) 16 Lea, 492 (oxen and wagon). Vermont.-McGrath v. Wilder (1905) 77 Vt. 431, 60 Atl. 801 (heifer). Wyoming. - Hunt V. Thompson (191) 19 Wyo. 523, 120 Pac. 181, 122 Pac. 624 (team of mares, etc.). "The measure of damages in such cases is the value of the use of the property during its detention, to be estimated by the ordinary market price of the use of such property." Stanley v. Donoho (Tenn.) supra. The damages are the value of the property when assessed and prior depreciation and value of use, less estimated wear and tear, etc., where the statute provides that "the court or jury may assess the value of the property taken, and the damages for taking and detaining the same, from the time such property was taken or detained from defendant until the day of the trial of the cause." Kreibohm v. Yancey (Mo.) supra. Woodburn v. Cogdal (1866) 39 Mo. 228, and Miller v. Whitson (1867) 40 Mo. 101, apparently eliminating damages for use, except interest, were overruled as decided under a wrong theory in Chapman v. Kerr (1883) 80 Mo. 158. So the prior case of Hutchins v. Buckner (1877) 3 Mo. App. 595, may also be disregarded. Under the Georgia statute, the defendant "has the election of recovering the highest value of the property between the conversion and the trial, without hire or interest, or of recovering the value at the time of the conversion, with interest or such hire as he may be able to prove." Bank of Blakely v. Cobb (1908) 5 Ga. App. 289, 63 S. E. 24, supra. Where the plaintiffs replevied horses, cattle, and farming utensils, and, "the defendants not having required the return of the property," it was sold by the plaintiffs a few days. later, the court said: "The greater part of the property at the sale was bid in for the defendants, and went into their possession immediately, and was retained by them down to the time of the trial. This property having a usable value, the correct rule of damages as to that portion thereof which was not retained by the defendants was what it was worth at the time of the trial and the value of its use during the time of its detention. Allen v. Fox (N. Y.) supra. But as to that portion of it which was bid in for the defendants and retained by them, the correct rule was the value of the property and interest thereon from the time it was taken to the time of the trial." Ditmars v. Sackett (N. Y.) supra. In a case of machinery, tools, etc., used in a factory for printing cloths, the court said: "In contemplation of law, his claim for compensation (independently of the return of the goods or their equivalent in money, as secured by the bond) would be made up of, first, interest on the money value [from the time of the demand under the writ of return]; second, the general inconvenience and loss resulting from the interruption of his possession; and, third, the expense, trouble, and delay attending the operation of replacing everything and restoring the establishment to its original condition." Stevens v. Tuite (1870) 104 Mass. 328. In Bruce v. Learned (1808) 4 Mass. 614, it was held that, except as provided by statute, the actual damages are to be allowed, and where the jury, in case of a horse, found less than 6 per cent, the court sustained the verdict. Judicial explanations. "In an action in replevin, where the property sought to be recovered has a usable value and that value amounts to more than interest on the value of the property, a court would be justified in assessing damages for the amount of the usable value of the property, and that would be the proper measure of damages, and not interest on the value of the property." Cunningham v. Stoner (1905) 10 Idaho, 549, 79 Pac. 228, supra. "Interest on the value of the property is no criterion of the damage sustained by the defendant by reason of being deprived of the use of it. The property was household furniture in daily use, and necessary to his comfort. It is evident that the restoration of the property, with interest on its value, would not furnish an adequate indemnity to the defendant for the wrong done in taking it out of his possession." Boston Loan Co. v. My ers (1887) 143 Mass. 446, 9 N. E. 805, supra. In Allen v. Fox (1873) 51 N. Y. 562, 10 Am. Rep. 641, supra, a case of a horse, where it was held that whether the property is returned or not the damages for detention are the same, the property being valued at the time of trial, the court said: "With this rule in view, what should be the measure of damages for the detention? In many cases, interest on the value from the time of the wrongful taking would be a proper measure. It would be, generally, in all cases where the property detained was merchandise kept for sale, grain, and all other articles of property useful only for sale or consumption. In such cases, if the owner recover the interest on the value of his property from the time he was deprived of it, he will generally have a complete indemnity unless the property has depreciated in value, in which case the depreciation must be added to the interest on the value, taken as it was before the depreciation, and the two items will furnish the amount of the damage. This damage, together with the property or its value at the time of the trial, will give the owner as complete indemnity as the law is generally able to give any person seeking redress for a wrong. But the same measure of damages would not generally furnish the owner an indemnity in case the property claimed had a value for use, or, in other words, a usable value, such as horses, cows, carriages, and boats. In such case, the direct damage which the owner suffers is the loss of the use, and the value of the use should be the measure of damage." "While it is the ordinary rule that for a wrongful taking of personal property the value of the thing, with interest from the time of the taking, will be the measure of recovery, yet there are many exceptions to the rule; one being where the property has a distinct 'usable value.' And horses broken and trained to do work would have, under ordinary circumstances, such 'usable value,' and, where such property has been wrongfully taken by one, and detained from another, such other has the right to recover as damages the reasonable value of the use of such property during the period of its detention; and this value is to be estimated by the ordinary market price of the use of such property." Thomas v. First Nat. Bank (1912) 32 Okla. 115, 121 Pac. 272, Ann. Cas. 1914A, 376, supra. "Ordinarily interest upon the value during the time the successful party was deprived of the property is the proper measure of damages for the detention, but it is not always or necessarily so. Where the property is valuable for its use, the value of its use may be recovered instead of interest." Hunt v. Thompson (1911) 19 Wyo. 523, 120 Pac. 181, 122 Pac. 624, supra, the court pointing out that under the Wyoming statute the damages recoverable were those which were "right and proper," and distinguished Just v. Porter (1887) 64 Mich. 565, 31 N. W. 444, and Becker v. Staab (1901) 114 Iowa, 319, 86 N. W. 305, infra, I. c, as decided under a statute requiring an election between a return and value. In McGrath v. Wilder (1905) 77 Vt. 431, 60 Atl. 801, supra, the court said, in case of a heifer: "If the heifer had been in the posses sion of the defendant during the time she was detained upon the replevin writ, he would have had the benefit of her increase in value, and in addition to this, he would have had the use of her. By the replevin he has been deprived of this use, and the value of this use, in so far as appears, represents his actual damage for the taking and detention, and he is entitled to this sum without any reduction for her increase in value." . b. Contrary doctrine. It seems to have been the earlier view that the interest was the measure of damages. Thus, in case of a raft of logs, the court said: "These damages ordinarily consist of the interest on the value of the goods when taken, from the time of taking till the judgment rendered. There are, however, cases where the jury may be allowed to give more than this interest. Where a writ of replevin is sued out fraudulently, and without 6 A.L.R.-31. c. Local variations of the rule. Under the Michigan statute, where the defendant waives a return of the property, and asks for its value, "there is no provision made for the recovery also of damages for the detention of the property," and the defendant is limited to the value at the time of the taking, with interest, and is not entitled to the value of the use. Just v. Porter (1887) 64 Mich. 565, 31 N. W. 444 (shingles) followed in Nitz v. Bolton (1888) 71 Mich. 388, 39 N. W. 15 (logs). Similarly, it was formerly held in Nebraska that it is only where a return is had that the defendant is entitled to damages for the detention; otherwise, he is entitled to the value of the property, with interest from the time of taking. Romberg v. Hughes (1886) 18 Neb. 579, 26 N. W. 351; Aultman, M. & Co. v. Stichler (1887) 21 Neb. 72, 31 N. W. 241. And see also Moore v. Kepner (1878) 7 Neb. 291; Dodge v. Runnels (1886) 20 Neb. 33, 28 N. W. 849. See also Garrett v. Wood (1865) 3 Kan. 231, infra, III. But this rule was modified in Schrandt v. Young (1901) 62 Neb. 254, 86 N. W. 1085, holding that the "measure of the damages for detention recoverable by a defendant in replevin may be stated thus: He may recover (1) if there is no special value attaching to the use of the property, interest; (2) if the value of use of the property exceeds the interest, then such value, without regard to whether the property is returned, but, in such case, no interest; (3) if loss, deterioration, or depreciation occur while the property is withheld, then the amount of such loss, damage, or depreciation, to be conditioned, however, upon return of the property, the alternative judgment for the value being fixed as of the date |