Gregory v. Morris

delivered the opinion of the court.

The second, third, fourth, fifth, sixth, seventh, and tenth assignments of error may be considered together. They relate entirely to the construction and effect given the contract between Gregory and Morris, as shown by the several instruments in writing • put in evidence. There was no real controversy as-to the facts; but.Gregory claimed that he was the purchaser of the cattle in dispute from Morris, and. that the lien provided for in favor of Morris was one which a delivery of the property under the contract, extinguished. There was no pretence of. payment on his part further than that shown by the contract itself, or of title, except such as was acquired through this purchase.

The lien at common law of the vendor of personal property to secure the payment of purchase-money is lost by the voluntary and unconditional delivery of the property to the purchaser ; but this does not prevent the parties from contracting for a lien which, as between themselves, will -be good after delivery. So, ordinarily, when the possession of a pledge-'is relinquished, the rights of the pledgee are gone. -In this case, however, Morris was not willing to rely upon the lien which the law gave him as vendor, or upon- a mere pledge of the property, but required a special contract on the- part of Gregory, securing, his rights. This contract created ’a charge upon the property, not in the nature of a pledge, but of á mortgage. .The lien, as between the parties, was not made to depend upon possession, but upon a contract, which defined the rights both of Morris and Gregory, and- the power of Morris for the enforcement 'of his security. When Poteet assumed the exclusive possession of the property, no rights of third persons had intervened, and there was nothing to prevent the execution of the agreement according to its terms. This clearly, gave Morris ■the right, after Oct. 1, if the purchase-money was not paid, to take the cattle into his own possession, .detain them until the balance due him was discharged, and sell' them if necessary to obtain his money. We think the court.defined correctly the rights of the parties, and that there was no error in this particular, either in the charge or the refusal to charge.

*624 The first assignment of error brings up for consideration.the rule of damages laid down by the court. By the laws of Wyoming Territory, property taken in replevin is delivered to the plaintiff upon his entering into an undertaking to the defendant, with one or more sufficient sureties in at least double the value of the property taken, to the effect that the plaintiff shall duly prosecute his action, and pay all costs and damages which may be awarded against him. Civil Code, 1869, sect. 190. If the property is so delivered, and the jury find for'the defendant upon the issues joined, they are also required, to find “whether the defendant has the right' of property or the right of possession only; . . . and if they find either in his favor, they shall assess such damages as they think right and proper for the defendant; for which, with costs of suit, the ■court shall render judgment for the defendant.” Sect. 195, The delivery of the property to the plaintiff passes the title to him as against the defendant, who must look for his protection to a -recovery in damages, if the writ is wrongfully sued out.'In this case, the finding for the defendant is, under the pleadings, in effect, that Morris was the mortgagee of the property in possession after condition broken, and. that Gregory had by the replevin wrongfully deprived him of his possession. That rendered Gregory liable for such damages, in consequence of his wrongful act,, as were “ right and proper ” under the circumstances. The obligation secured by the mortgage or lien under which Morris held was for the. payment of gold coin, or, as was said in Bronson v. Rodes (7 Wall. 229), “an agreement to deliver .a certain weight of standard gold, to be ascertained by a count of coins,, each of which is certified to contain a defimte proportion of that weight,” and is not distinguishable “from a contract to deliver an equal weight of bullion,of equal fineness.”: In that case, it was held that, judgment might be rendered upon such a contract • payable in .coined dollars; but here the suit is not upon the contract for the recovery of the amount agreed to be paid, but, in effect, for damages on account of tlie wrongful'detention of property mortgaged to secure the debt. Gregory himself asked the court to charge that “ the' jury must compute damages and return their verdict in dollars and cents.” This was undoubtedly correct, and it was done; *625 but he further asked the court, to say that “ ¿0 agreement or contract to pay a certain number of. dollars in. -gold can be enforced. The national currency is by law a legal tender at its face .value'for all debts and demands, public or private, except duties on imports .and interest on the public debt.” This was in conflict with Bronson v. Rodes, and therefore properly refused.

But the court did say to the.jury, that, if they found the contract'on the part of the plaintiff was to pay a certain sum. of. money- in -gold, .they should compute the difference between gold and currency,-and render their verdict in dollars and cents in currency; and in this we see no error. While we have de- . cided that a judgment upon a contract payable in gold may be . for payment in coined dollars, w.e have never held that in all cases it must be so. While gold coin is in one sense money, it iá'in another an article of .merchandise. Gregory was required to discharge his' debt in gold -before he could rightfully take the.property into his possession under the replevin. If the payment, had been so made, Morris would have had his coin at .that time to use as money'or merchandise, according to his discretion.' But it was not made; and Gregory, by his wrongful áct in taking the property, subjected himself to damages. If thé'contract- had been in- terms for the delivery of so much, .gold bullion, there is no doubt but-the court might have directed the jury to -find the'value of the bullion, in currency, dnd bring in a verdict accordingly. But we think, as' was .thought in Bronson v. Rodes, such a case is- not really distinguishable, from this. The question is not whether Gregory had the right to .pay in gold dollars after his debt had become due, but whether, -having wrongfully got the property into his possession without'payment'at all, the damages he is required-to .pay on'account of this wrongful act must, as a matter of Taw, be estifriated in gold, or whether they may be in currency. We think it clear, that, under such circumstances, it was within the. ■ power of the, court, so far- as Gregory was concerned, to treat (he contract' as one for. the delivery of so much gold bullion;, and, if Morris was willing to accept a judgment which might 'be discharged in' currency, to' have his damages estimated according to the currency'value, of bullion. .Certainly, if Morris *626 had in good faith sold the cattle under his power of sale for currency, and received payment in that kind of money, he would have been entitled to convert the currency into gold before crediting it upon his debt. So here, if, with the approbation of the court, he takes a judgment that may be discharged in currency, the judgment should be for an amount which would be the equivalent in currency of the specified amount of coin as bullion. This was the rule adopted by the court, and we think it correct.

The eighth and ninth assignments of error relate to the form of the verdict. As has already been seen, where the property has been delivered to the plaintiff, the jury, if they find for the defendant, must also find whether the defendant has “the right of property or the right of possession only.” In this case the verdict $ though for the defendant, is silent upon that point; but the record shows that by consent the court charged the jury if they found for the defendants .they should find “ that they had the right of possession only.” This Cures any defect there may have been in the verdict in this particular. The whole record must be taken together; and,.as the jury did not find to the contrary of the instruction, the presumption is that they followed it.

All the other assignments relate to the admissibility of evidence, and .as to them it is sufficient to say we are satisfied with the rulings that were made. Certainly, the instruments in writing which were objected to were admissible. They tended directly to prove the. defence set up in the amended answer, and no objection appears to have been made at the trial as to the proof of their execution. The cross-examination of Gregory,.which was objected to, was clearly legitimate, under the most stringent rules governing that subject. He had testified that he had purchased the cattle from Morris. '• was clearly proper, therefore, on cross-examination, to ask hi. if his contract of purchase was in writing, and, if so, to identify the paper.

Judgment affirmed.