Opinion
December 1, 1930.
January 5, 1931.
Replevin — Writ of inquiry — Possession — Equity — Damages — Detention — Lis pendens.
1. Where a widow, as executrix of her husband, files a bill in equity for an accounting against her husband's business manager, who claims an interest as a partner, secures a decree in her favor, and the defendant tenders her possession of the property, and it appears that, on the same day, the executrix issues replevin for the goods of the business, and defendant retains possession of them under a counterclaim bond, plaintiff in replevin may proceed to judgment, but a judgment will be entered without prejudice to defendant to offer such evidence as may be available to him in proceedings to assess damages on a writ of inquiry. [207]
2. In such case, if defendant shows that he returned the goods after the decree in equity was entered against him, and that plaintiff accepted them, plaintiff cannot recover the value of the goods, but she will be limited to damages, if any, for the detention. [207]
Before FRAZER, C. J., WALLING, SIMPSON, KEPHART, SADLER, SCHAFFER and MAXEY, JJ.
Appeal, No. 290, Jan. T., 1930, by defendant, from order of C. P. No. 2, Phila. Co., March T., 1929, No. 8971, making absolute rule for judgment for want of sufficient affidavit of defense, without prejudice, in case of Harriet H. Smith, executrix of estate of Frederick M. Smith, deceased, v. Abraham Berlinberg. Affirmed.
Replevin for goods.
STERN, P. J., filed the following opinion:
The plaintiff's decedent, Frederick M. Smith, was the owner of a certain business of renting and selling chairs. The defendant, Abraham Berlinberg, was employed by him to manage the business. Smith died, and his wife Harriet H. Smith, executrix of his estate and plaintiff herein, called upon the defendant for an accounting and to turn over to her the business which had belonged to her husband. He failed to do so, and his action, in the opinion of the court, was thoroughly arbitrary and unjustified. The plaintiff, on April 12, 1929, filed a bill in equity, and, later on the same day, issued a writ of replevin. The general purpose of the bill in equity was for an accounting, and of the writ of replevin for recovery of possession of the physical assets. On April 16, 1929, the defendant filed a counterbond in the replevin proceedings and thereby retained possession of the property.
The equity proceedings went ahead and resulted, on June 12, 1929, in a decree of the court ordering an accounting and that the defendant deliver to the plaintiff possession and control of all of the assets and property of the business. Exceptions were filed and dismissed. The decree was unappealed from and remains, therefore, as a final adjudication of the equity proceedings.
On April 25, 1930, the plaintiff filed her declaration in the replevin proceedings, and, on May 12, 1930, the defendant filed his affidavit of defense thereto. The plaintiff took a rule for judgment for want of a sufficient affidavit of defense, and the court, on May 29, 1930, made the rule absolute, "without prejudice to defendant to offer such defense as may be available to him in proceedings to assess damages on the writ of inquiry."
The affidavit of defense is peculiarly inconsistent and contradictory. Half of it insists that the controversy between the parties was finally adjudicated by the decree in equity and that the issues therein raised were identical with those in the present replevin proceedings. The other half still defiantly maintains that the defendant was not an employee, but was a partner of the decedent, and, therefore, that he was entitled to the possession of the assets of the business, presumably as liquidating partner.
If the one position is correct, namely, that the issue has been decided in the equity proceedings, then the plaintiff is clearly entitled to judgment for possession. If, however, the controversy between the parties was not decided by the equity proceedings (although any such contention is obviously untenable), nevertheless, on the present pleadings in the replevin case, setting forth as they do the agreement between Smith and the defendant of January 24, 1927, which clearly indicates that the defendant was not a partner but merely an employee or manager receiving one-half of the profits as compensation for his services, the court would be obliged to adjudge, as in the equity case, that the business belongs to the plaintiff, and that she is, therefore, entitled to judgment for possession in the replevin proceedings.
The affidavit of defense asserts that judgment should not be given in the action in replevin because of the prior pending equity proceedings. However, the equity proceedings were finally determined almost a year before the pleadings (including the present affidavit of defense) were filed in this replevin action, and, therefore, the defense of lis pendens is unavailing.
The affidavit of defense also maintains that the defendant subsequently surrendered possession of the property in compliance with the decree in equity. Apart from the fact, however, that, after the defendant by filing a counterbond had taken possession of the assets, the plaintiff was not obliged to accept a tender of them but could, at her option, either proceed on a judgment in replevin by a writ of retorno habendo or to recover the value of the goods by the way of assessment of damages on a writ of inquiry, there is no reason why the plaintiff should not obtain judgment of the court indicating that she is entitled to possession of the goods. By making the rule for judgment absolute nothing is decided as to the plaintiff being entitled to recover money damages. On the contrary the order of the court granting judgment was stated to be without prejudice to the defendant to set up any defense available to him in proceedings to recover damages on a writ of inquiry. If on such proceedings it should appear that it is true, as stated by him in his affidavit of defense, that he returned the goods to the plaintiff and that the latter accepted the same, the plaintiff obviously would not be entitled, under such writ of inquiry, if one be issued, to recover the value of the goods; her recovery would be limited to damages for detention, if any, until the goods were so returned.
In short, the court is of opinion that the plaintiff was not obliged to proceed against the defendant in contempt proceedings for failure to comply with the equity decree to deliver the property to her. Indeed, if she were so restricted, the defendant might choose to undergo any penalty for contempt that the court might inflict but never return the goods. The plaintiff should be entitled in these replevin proceedings, if the good have not been returned, to recover their value.
For these reasons the court made absolute the rule for judgment, without prejudice as above indicated.
Defendant appealed.
Error assigned was order, quoting it.
Joseph H. Shoemaker, for appellant.
Noar Klein, for appellee.
Plaintiff, executrix of the estate of Frederick M. Smith, in her bill seeks to secure an accounting and obtain control of a going business concern left by her decedent, in which defendant claimed an interest as partner, and of which he had control as manager, under an agreement with Frederick M. Smith made during his lifetime.
On the same day that plaintiff's bill was filed for an accounting and control of the business, she also issued a writ of replevin, to secure possession of the physical assets of the business and for damages for their detention. Defendant filed a counterbond in this proceeding and thereby retained possession of the property.
A decree in the equity proceeding was made ordering defendant to make a true and complete accounting of the business in question and to pay plaintiff all sums due in accordance therewith, as prayed for in the bill; and further, without a prayer to that effect, ordering delivery to plaintiff of all assets and property of the business. Defendant filed exceptions to the decree, which were overruled. No appeal from this action was taken, and, two months after the date of the decree, defendant tendered plaintiff possession of the goods in question.
In the replevin action, on declaration filed, following the decree in equity, the court made absolute a rule for judgment for want of a sufficient affidavit of defense, but "without prejudice to defendant to offer such defenses as may be available to him in proceedings to assess damages on a writ of inquiry." The appeal before us is on this ruling, defendant claiming that the two proceedings were on identical issues and, consequently, a decree having been entered in the equity proceeding, plaintiff was not entitled to judgment in the replevin action.
The court below correctly held that the decree in the equity proceeding did not prevent plaintiff from pressing for a judgment in the replevin case, but that plaintiff was entitled to judgment for possession, and that, defendant having taken possession by filing a counterbond, "plaintiff was not obliged to accept a tender of [the property] but could, at her option, either proceed on a judgment in replevin by a writ of retorno habendo or to recover the value of the goods by way of assessment of damages on a writ of inquiry." The court further stating that "By making the rule for judgment absolute nothing is decided as to the plaintiff being entitled to recover money damages. On the contrary the order of the court granting judgment was stated to be without prejudice to the defendant to set up any defense available to him in proceedings to recover damages on a writ of inquiry. If on such proceedings it should appear that it is true, as stated by him in his affidavit of defense, that he returned the goods to the plaintiff and that the latter accepted the same, the plaintiff obviously would not be entitled, under such writ of inquiry, if one be issued, to recover the value of the goods; her recovery would be limited to damages for detention, if any, until the goods were so returned." The conclusion reached by the court below was clearly correct.
The judgment of the court below is affirmed.