Jeffreys & Stribling, Appellants, vs. J. C. Greeley, Appellee, 20 Fla. 819

The Chief-Justice delivered the opinion of the court. Greeley sued appellants in replevin for a set of parlor furniture, alleging its unlawful detention by them. They gave bond under the statute and the property was returned to them by the sheriff. , Defendants pleaded not guilty and the cause was tried with a jury. Plaintiff testified that he had purchased and owned the property. He said in answer to his attorney’s question, “ I have been offered one hundred and seventy-five dollars for it.

I believe it is worth that sum and would take one hundred and eighty-five for it.” On cross-examination, he said he could not give the market value of the furniture in any other way than he had already done. Other téstimony was given, but the foregoing is all that is necessary to present the legal questions raised. Before charging the jury the court called on plaintiff’s attorney to elect whether he would take the furniture or the value of it in case of a verdict for plaintiff, and plaintiff’s counsel announced in open court that he elected to take the value.

The judge then charged the jury as follows: “If the jury believe from the evidence that the furniture in question is the property of the plaintiff and is unlawfully detained by the defendants, you should find a verdict of unlawful detention.” And further: “If the jury find for the plaintiff, they should assess the damages at whatever sum may have been proven as the value of the furniture.” Exceptions were taken to each paragraph. At the request of defendants the judge charged the jury: “ Before the jury can assess any value for the property they must find from the evidence the market value thei’eof.

What the defendant’ may have been willing to take, or what any particular individual may have offered him, is no evidence of market value.” The jury found for the plaintiff and “ assessed the damages at one huudred and seventy-five dollars.” Judgment was entered on verdict. Defendants moved to vacate the judgment on the ground that the verdict is for damages and not for the value of the property.; whereas the statute provides that the plaintiff shall take judgment for the “ value of the property” or “ for the property itself.” The motion was overruled.

Defendants appeal and assign for error the refusal of the court to vacate the judgment. Appellants insist that the verdict and judgment are not' authorized by the statute. It is provided that “on the trial of any action of replevin when the property has been re-delivered to the defendant the same proceedings shall be had as provided by law, except that when the plaintiff in replevin shall maintain his suit it shall be at his option to take judgment for the value of the property and sue out execution therefor, or take judgment for the property itself,” &c. McC. Dig., 862, §17; Acts of 1879, ch. 3133.

ITis argument is that the verdict should have been for plaintiff, and assessing the value of the property. That this form of verdict would be strictly correct is very evident. What the form should be is not prescribed by law, but the statute says “ when the plaintiff shall maintain his suit, it shall be at his option to take judgment for the value,” or for the property itself. The option may be exercised when he “ shall maintain his suit.” He took his judgment for the money, aud so exercised his option after verdict.

The option is that of the plaintiff' and .not that of the defendants, and so it is of no consequence to the defendants whether plaintiff expressed his option before or after verdict. In fact, if the verdict had been $25 instead of $175, the advantage, if any, would have been on the side of defendants.

In this case, according to the bill of exceptions, before charging the jury the judge asked the plaintiff to express his option, to which the defendants did not object, and the plaintiff in open court announced his election to take the value, and to this the defendants did not object or except, but thereby acquiesced. The judge then charged the jury that if they should find for the plaintiff they should assess the damages at what was proven to be the value of the property, and they assessed the “damages” at $175.

The testimony, which was not. objected to or excepted to in any manner, named $1.75 as the value, and this was the only sum named. So it is evident that the damages so assessed was what they found proven as the value. To say, then, that the jury should have used the word value instead of damages, is in this case'a play upon words and did not affect the rights of the parties. The defendants are not injured by the supposed irregularity iu the choice of words.

Nor could the jury have been misled by the instruction of the court to assess the damages at the value as proven ; it was the value that they were instructed to find, and it was immaterial whether it was called damages or value iu reporting the amount found proved. Suppose the plaintiff had not made his election until after this verdict was returned, in which, under the instruction of the court, they had ascertained the value and called it damaged? In that case how could it have been erroneous to have allowed the plaintiff to take his option of a judgment for the property, or for the amount so found ?

Appellants confess that' if it had been designated as value the plaintiff could have his judgment for the amount. There is no room for question that the amount named did not include anything beyond what they wrere authorized by the evidence to find as the value of the property. There is no question raised as to the sufficiency of the evidence, and, indeed, as there was no exception.to the testimony and no motion for a new trial, no such question can be considered. Nor is there any question before us as to the correctness of the Judge’s charge.

The motion here was, after judgment, to vacate it, not. to set aside the verdict. Eor the reasons before stated we cannot discover how the supposed irregularity complained of could have operated to the disadvantage of the defendants. The judgment is affirmed.