Ellis Swift et al. versus Isaac Barnes et al., 16 Pick. 194

Wilde J. delivered the opinion of the Court. It being admitted that the condition of the bond has been broken, the only question submitted is, by what rule the damages are to be assessed. And we are of opinion, that the value of the property replevied, at the time when it was demanded on the writ of restitution, is the true measure of damages. This is the general rule of damages, on all contracts to deliver goods on demand, and we can perceive no distinction between the present contract and a common contract to deliver goods.

On all contracts and obligations, the party injured by the breach or non-performance, is entitled to a full indemnity. The statute prescribes no rule of damages in a case like the . present, and it is distinguishable from the cases cited, in which it has been held, that the estimated value in the bond, of the goods replevied, is the true measure of damages, in an action on a replevin bond. In Huggeford v. Ford, 11 Pick. 223, the question was, whether the plaintiff was bound by the valuation fixed in his writ, or might show that the actual value was less than the valuation.

It was held, that he was bound by the valuation in the writ of replevin, because he had set his own value upon the goods. And in Middleton v. Bryan, 3 Maule & Selw. 155, the same principle is laid down. The sureties, it is said, by executing the bond admit the value as estimated. In Gordon v. Jenney, 16 Mass. R. 465, it was decided, that a plaintiff in replevin, retaining the articles replevied, until judgment in the suit, cannot claim damages for any depreciation in their value, because he may always convert them into money.

The principle laid down in these cases is undoubtedly well established ; but it is not applicable to the question submitted in this case. The plaintiff in replevin, who causes the property lo be valued, may well be bound by the valuation, when it is made to appear that the action was groundless '■ but it by no means follows, that the other party, who had no agency in the valuation, is also to be bound.

The present plaintiffs are entitled to a full indemnity for the damages sustained by the non-performance of the condition of the bond, and that cannot be obtained unless they may be allowed to recover the actual value of the property replevied, at the time when it ought to have been restored on the writ of restitution. And we have no doubt that, in the present case, that is the true measure of damages.