Merriam v. Woodcock.

There was no error in refusing the instructions requested. The plaintiff's letter to the defendant's sister in December 1865 did not, as was contended in the first of these instructions, put an end to the contract, but treated it as terminated by him long before. The second instruction was inapplicable to the case, because it was assumed that the engagement continued to the date of this letter; whereas both parties had contended that it had been terminated in the February preceding, and differed only upon the point whether it had been so terminated with her consent. The third was covered by the instructions given, which permitted the jury to find that the contract was originally conditional, or was afterwards made so. The fourth instruction presented a partial view of the case, and was calculated to prejudice the plaintiff with the jury. The submission to the jury of the plaintiff's failure to produce all the letters and destruction of some of them, as circumstances to be considered by them "in determining the weight and effect to be given to the letters produced," necessarily involved a consideration of the probable contents of the missing letters. All the instructions given appear to us to have been clear and just, well adapted to the case, and open to no legal exception. Exceptions overruled.

CAROLINE C. MERRIAM VS. SHEPHERD S. WOODCOCK & another.

A judgment recovered on the merits, by a laborer, for the full amount of his claim, in an action against a married woman and her husband for work done on her separate estate, which she defended on the ground that he was negligent in doing the work, though without seeking to recoup therefor, is a bar to a subsequent action by her against him for such negligence.

COLT, J. In a former action between these parties, the present defendants recovered compensation for services rendered under a contract with the present plaintiff, made with reference to her sole and separate estate, in which her husband was joined as codefendant. In defence of that action, the answer, afte

Merriam v. Woodcock.

setting out the contract with particularity, alleges negligence and unskilfulness in the performance of the services required, in every respect, and charges that the services actually rendered were of no value. The case was sent to an auditor, who found, in accordance with the defendant's claim, that the damage resulting to the defendant, on account of the plaintiffs' want of skill and negligence, was greater than any benefits received, and that the plaintiffs were not entitled to recover anything for their services. But this finding was not sustained at the trial, and a judgment was recovered, apparently for the full amount of the plaintiffs' claim.

The pending action is for the recovery of damages for the negligent and unskilful performance of the same contract for services by the plaintiffs in the former, and the defendants in this, action; and it is urged by this plaintiff that the former judgment is no bar to this suit.

The legal tests by which this is to be determined are of easy application to the facts presented. It is apparent that the subject matter of judicial controversy here has already been drawn in question, and directly put in issue in the former action. The parties to this suit were parties to that. The pleadings show that the declaration in both cases is upon the same contract; that the allegation of negligence and unskilfulness, which is the ground of this action, was set up in defence of that, and would have reduced or defeated the claim for services, if proved, on the ground of their total or partial want of value; and the jury must have passed upon that question in coming to their verdict. A recovery in the first action could not have been had without establishing a performance of the contract, or at least valuable services rendered under it. Merriam v. Whittemore, 5 Gray, 316. Burlen v. Shannon, 99 Mass. 200.

It is said that there was no claim by the defendant in the first action to recoup the damages claimed here. This may be so; and such is the proper course to pursue, when, in the opinion of the party defending, the damages which he has suffered from the plaintiff's negligence or want of skill exceeds a just claim for services under the contract, and it is intended to make a

Stevens v. Tuite.

claim for such excess in an independent action. For the purpose of avoiding circuity of action, it is permitted to show these damages in an action on the contract, instead of compelling a resort to a cross action. The defendant must make his election, however. He cannot avail himself of such a defence by way of recoupment strictly, and afterwards bring his action to recover for the damages in excess. In this case, plainly it is of no consequence that the answer did not seek technically to recoup in the first action; for the facts set up in it, if proved, would have made out a complete defence; and the difficulty is, that the same facts are made the foundation of the present action. The subsequent remedy for the excess depended on defeating the first action, in which there could have been no recovery without proof of performance of the contract, or of valuable services rendered under it. The issue once found in favor of the plaintiffs, followed by judgment thereon, is forever settled between these parties. Harrington v. Stratton, 22 Pick. 510. Burnett v. Smith, 4 Gray, 50. Stevens v. Miller, 13 Gray, 283. And see Davis v. Tallcot, 2 Kernan, 184.

J. F. Pickering, for the plaintiff.

Exceptions overruled.

D. H. Mason & W. P. Harding, for the defendants.

LEVI F. STEVENS VS. PETER C. TUITE & others.

A manufacturer, from whom the entire machinery of his cloth printing factory, in running order and actual use, was replevied, including steam apparatus for supplying the motive power, took judgment for a return and for damages assessed by computing interest on the appraised value of the property from the date of the writ to the date of the judgment, under an agreement expressly provided to be without prejudice to his action on the replevin bond. On the demand of the officer upon the writ of return, tender was made of all the machinery except the steam apparatus, with an offer to pay the value of that, or to replace it. This tender was not accepted; and the writ was returned in no part satisfied, and suit brought on the bond. Held, 1. that the officer had a right to treat the property as an organized whole, and refuse the offer to return part of it: 2. that the manufacturer's claim for damages, in the action of replevin, included compensation for the general inconvenience and loss resulting from the interruption of his possession. and for the expense, trouble and delay of restoring the factory to its former condition, as well as interest on the value of the property; but 3. that the claim was an entire claim and no portion of it recoverable in the suit on the bond, notwithstanding the proviso in the agreemen under which he took his judgment; and 4. that the measure of his dam

Stevens v. Tuite.

ages in the suit on the bond was the sum which, under the ordinary circumstances attending a sale, might reasonably be agreed upon as a fair price for the property, between a seller desirous of selling, and a buyer desirous of buying, it as a whole, to be used in the place from which it was taken and for the purposes for which it was intended and arranged.

CONTRACT on the replevin bond taken in the case of Tuite v. Stevens, 98 Mass. 305. At the trial in this court, before Morton, J., the plaintiff put in evidence an auditor's report, the material parts of which were as follows:

"The plaintiff in the present, action, being defendant in the original replevin suit, recovered judgment against Tuite, the plaintiff therein, for $1448.02 damages, and $224.80 costs, and for a return of the goods replevied. The date of the replevin was October 19, 1865; judgment for return was recovered De. cember 7, 1867; and the writ of return was issued December 12, and demand made thereon for restitution of the goods replevied, as appears by the officer's return, December 19, 1867. The execution has been in no part satisfied, and no part of the goods has been returned.

"The property replevied consisted of the machinery, apparatus, tools, implements, trade fixtures and entire equipment of an establishment for printing woolen cloths, and included, among other things, steam engines and boilers, a steam pump, and other steam apparatus, screw presses, power presses, printing machines, copper print rolls, press plates and papers, shafting, belting and pulleys, and a large amount of steam piping the whole being designed, adapted and arranged for carrying on the business of cloth printing, and at the date of the replevin being in complete running order and actual use in that business. The plaintiff in this action derived his title to the property under a mortgage from Daily & Worthen, by whom the establishment had been fitted up a few months before the replevin suit, although a considerable part of the machinery and apparatus therein had been removed from premises which they formerly occupied for the same purpose. At the time of the replevin, he had perfected his title by foreclosure, and secured a lease of the premises in which the property was situated and was

Stevens v. Tuite.

engaged there in the business of cloth printing on his own

account.

"It was assumed by the counsel for both parties, that the general rule of damages to be applied was the market value of the property replevied at the date of the demand made upon the writ of return, supposing it to be at that time in the same order and condition as it was when replevied, with interest from the date of such demand, added to the amount of the judgment for damages and costs in the original action, with interest thereon from the date of such judgment. But in the application of this rule to the facts of the case, and as to the mode and principle by which such market value was in this case to be ascertained, they differed, the counsel for the plaintiff contending that such value was to be determined by ascertaining for what sum the plaintiff could replace the property replevied with property of like character in the premises, including the cost of placing and setting up the same; and the defendants' counsel contending that the measure of market value was such sum as the property would bring if sold after being taken on replevin, and removed from the premises in which it was found.

"The testimony of witnesses familiar with the property, and experts in its valuation, was introduced for the purpose of showing its nature, condition and value. I find, upon the testimony produced, that some portions of the property replevied were articles having in themselves a fixed or ascertainable value, as articles of bargain and sale, and capable of being readily disposed of at such market value, either at public or private sale, removed from the premises in which they were situated, and separated from the other machinery and apparatus in connection with which they were used. But I find that other portions of such property, if so removed and separated from the establishment of which they formed a part, and disconnected from the machinery and apparatus in connection with which they were designed and adapted to be used, would be thereby deprived of a great part of their value, and could be disposed of only at a price greatly inferior and disproportionate to their cost, and to their value when sold, as used in connection with the other parts of said property."