TMI Blog1957 (10) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... Pursuant to the said agreement truck No. AWB 230 was handed over to the respondent on April 29, 1942, and truck No. AWB 253 was given on May 4, 1942. The respondent used truck No. AWB 230 from April 29, 1942, to July 31, 1942, excepting the period from June 4, 1942, to June 9, 1942, and truck No. AWB 253 from May 4, 1942, to July 31, 1942, excepting the period from June 1, 1942, to June 9, 1942. On June 29, 1942, the respondent gave notice to the appellants terminating the agreement with effect from August 1, 1942, and asked them to remove the trucks on the expiration of that period. The appellant No. 1 attended upon the Officer Commanding 4 M.T.T. Centre, Kamptee at about 9 a.m. on August 1, 1942, for removing the trucks but they were not delivered to him by the transport in-charge and by his letter of the same date addressed to the S. S.O., Kamptee, the appellant No. 1 put the above fact on record. The respondent did not return the trucks to the Appellants nor did it pay any hire charges to them. The respondent took up the position that the amount of hire had been paid and the trucks had been delivered by it to one Surjan Singh who was alleged to have been a partner of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the two trucks which had been fixed by the appellants at ₹ 3,500 both in the notice under s. 80 of the Code of Civil Procedure and the evidence led on their behalf. It also awarded to the appellants interest on that sum at 6% per annum by way of damages. It, however, refused to grant any mesne profits holding that for either detention or conversion, the value of the goods on the date of the tort was sufficient compensation. The rent of the trucks was calculated at ₹ 2,380 and it awarded to the appellant that sum together with interest thereon at 6% per annum from August 1, 1942, to January 7, 1943. It accordingly passed a decree in favour of the appellant for ₹ 6,032-4-0 with proportionate costs against the respondent as well as Surjan Singh. The appellants preferred an appeal to the High Court of Judicature at Nagpur. They claimed a total sum of ₹ 11,985 as also the highest market value of the trucks. In so far as a decree for ₹ 6,032 had already been passed by the Trial Court in their favour, they valued the subject- matter of the appeal at ₹ 5,953 and accordingly furnished court-fee stamp for that amount. The Office of the Registrar to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Trial Court's decree was accordingly enhanced by Rs, 5,953 thus allowing the appellant a further sum of ₹ 5,477 for compensation under that head and the appeal was allowed with costs to that extent. The appellants thereafter applied for a certificate of fitness to appeal under s. 110 of the Code of Civil' Procedure and hence this appeal. The two main points which have been urged by the appellants before us are : (i) that the 'appellants' suit was one for wrongful detention and the appellants were entitled to return of the two trucks or in the alternative to the value thereof as on the date of the decree, that the value of the two trucks at the date of the decree was ₹ 7,000 each and the Trial Court should have awarded to them a sum of ₹ 14,000 in the alternative and (ii) that in addition to the above relief the appellants were entitled to damages for wrongful detention of the trucks calculated at the rate of ₹ 17 per day per truck from August 1, 1942, being the date of the accrual of the cause of action till July 7, 1944, which was the date of the decree passed by the Trial Court in their favour. The reply of the respondent was (i) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity to restore the bailor's property on the termination of the bailment and if he fails to do, he may be sued in detinue. (Clerk Lindsell on Torts, 11th Edition, pages 441 and 442: paras. 720 721). Detinue at the present day has two main uses. In the first place, the plaintiff may desire the specific restitution of his chattels and not damages for their conversion. He will then sue in detinue, not in trover. In the second place, he will have to sue in detinue if the defendant sets up no claim of ownership and has not been guilty of trespass; but the original acquisition in detinue sur bailment was lawful. Detinue lies against him who once had but has improperly parted with possession. At common law the natural remedy for the recovery of chattels was the action in detinue. In that action the judgment was in the alternative that the plaintiff do recover the possession of the chattels or their assessed value in case possession cannot be had together in any case with damages for their detention. (Salmond on Torts, 11th Edition, pages 351, 352 353). Judgment for the petitioner in trover is for recovery of damages for the conversion: Judgment for the petitioner in detinue i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he plaintiff after the plaintiff has demanded their return, he is, for such time as he so withholds them, guilty of wrongful detention: This is the tort of which a bailee or finder is guilty who is in possession of the goods and fails to deliver them up within a reasonable time after demand, though it may also, in the case of a bailee, be a breach of contract. If the bailee or finder subsequently disposes of the goods, he is guilty of conversion, but the wrongful detention then comes to an end and is swallowed up in the conversion. Paton on Bailment in the Common Law (1952 Edition) has the following observations to make in regard to these two forms of causes of action at page 404: The following maxim has been suggested as a guide for plaintiffs: if the market is falling sue in conversion, if it is rising sue in detinue. This is the orthodox view and it shows that even to-day the distinction between the old forms of action is important. Whether the plaintiff files an action for wrongful conversion or for wrongful detention this is essentially a matter for his election ; he can sue the bailee who has parted with wrongful possession of the goods in favour of a third p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self from complying with the lawful demand of the bailor. In that case, the principle that a man intrusted with property for safe custody cannot better his position by wrongfully parting with possession of it, but must be answerable as if he retained the possession, was applied both in this Court and in the Exchequer Chamber to the action of detinue..................... And this is agreeable to the maxim, Qui dolo desiit possidere pro possidente Damnatur. It may be noted that this case of Wilkinson v. Verity (1) was followed by the Court of Appeal in England in Rosenthal v. Alderton Sons Ltd. (2 ) and by the High Court of Australia in John F. Goulding Proprietary Limited v. The Victorian Railways Commissioners (3). It is clear therefore that a bailor in the event of the non- delivery of the goods by the bailee on a demand made by him in that behalf is entitled at his election to sue the bailee either for wrongful conversion of the goods or the wrongful detention thereof and if the bailor pursues his remedy against the bailee for wrongful detention of the goods it would be no answer for the bailee to say that he was guilty of wrongful conversion of the goods at an earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made in their notice dated August 4, 1942, was for specific delivery of the said trucks by the respondent. Even though the appellants knew that the said trucks had been redelivered by the respondent to Surjan Singh and they could have, if they had been so minded, sued the respondent for wrongful conversion of the said trucks, they elected to have the said trucks re-delivered to them and asked for the specific delivery thereof and filed their action for wrongful detention of the said trucks. They were, in our opinion, perfectly entitled to do so and we have to consider the further questions that arise before us on the basis that the action for wrongful detention had been rightly instituted by the appellants against the respondent. This leads us to the question as to what relief the appellants are entitled to obtain against the respondent. The claim for the rent already due by the respondent to the appellants up to August 1, 1942, has been settled by the judgments of the courts below and we are not called upon to canvass these findings of fact any further. The more important questions that require to be dealt with are: (1) What is the amount which the appellants are entitled to recov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code of Civil Procedure and that they were therefore not entitled to recover anything more than the sum of ₹ 3,500 and they accordingly upheld the decree of the Trial Court in this behalf We are constrained to observe that the approach of the High Court to this question was not well founded. The Privy Council no doubt laid down in Bhagchand Dagadusa v. Secretary of State (1) that the terms of this section should be strictly complied with. That does not however mean that the terms of the notice should be scrutinized in a pedantic manner or in a manner completely divorced from common sense. As was stated by Pollock C. B. in Jones v. Nicholls (2) We must import a little common sense into notices of this kind. Beaumont C. J. also observed in Chandu Lal Vadilal v. Government of Bombay (3): One must construe section 80 with some regard to common sense and to the object with which it appears to have been passed........... If the terms of the notice in question be scrutinized in this manner it is abundantly clear that the relief claimed by the appellant was the a re-delivery of the said two trucks or in the alternative payment of ₹ 3,500 being the value thereof. The valu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overing from the respondent the appreciated value of the said two trucks as at the date of the judgment. It is relevant to note that neither was this point taken by the respondent in the written statement which it filed in answer to the appellants' claim nor was any issue framed in that behalf by the Trial Court and this may justify the inference that the objection under s. 80 bad been waived. The point appears to have been taken for the first time before the High Court which negatived the claim of the appellants for the appreciated value of the said trucks. Turning then to the question whether the appellants were entitled to the value of the said trucks in the alternative as at the date of the judgment or at the date of the tort, whether it be conversion or wrongful detention, the position appears to be a little confused. Recent cases indicate that there is much conflict concerning the true rule to apply as to the measure of damages in detinue and conversion. As to the time at which the value of the goods which are the subject-matter of the tort should be assessed it is not certain (a) whether the rule is the same in trover as in detinue; (b) whether damages should be calcu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been completed by the defendant according to his contract with the plaintiff and deduct therefrom the money that would necessarily have been laid out by the defendant after that date, in order to complete her according to the contract. The value of the ship was thus calculated as at the date of the conversion even though the method of computation was prescribed by the circumstances of the case. In S. S. Celia v. S. S. Volturno (1) the House of Lords had to consider the question whether the proper date for ascertaining the rate of exchange for the purpose of converting the amount payable into English currency was the date on which the detention occurred or the date on which the damages were assessed or payment made. Lord Buckmaster at page 548 said: A judgment, whether for breach of contract or for tort, where, as in this case, the damage is not continuing, does not proceed by determining what is the sum which, without regarding other circumstances, would at the time of the hearing afford compensation for the loss, but what was the loss actually proved to have been incurred either at the time of the breach or in consequence of the wrong. With regard to an ordinary claim for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, but damages also for the postponement of the payment of those damages until the date of the judgment. If such later damages can be recovered as under circumstances they may be if the defendant improperly postpones payment, they would be recovered in the form of interest. They would be damages not for the original tort, but for another and a subsequent wrongful act. In the Arpad (1) where the plaintiff laid alternative claims in contract and tort it was held that the true measure of damages was the value of the goods at the date of the non- delivery, disregarding circumstances peculiar to the plaintiffs and that on the alternative claim in tort for damages for conversion also, the measure of damages was the same. Scrutton L.J. observed in the course of his judgment at page 205 : In my opinion the damages in conversion should be the value to the purchaser or goods owner at the time of the conversion. The last case in this series is that of the Caxton Publishing Co. v. Sutherland Publishing Co. (2). Lord Porter in his speech at page 201 defines conversion in the terms following: As to (3) conversion was defined by Atkin J. as he 'then was, in Lancashire and Y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inue the value of the goods should be measured as at the date of the judgment or verdict, and not at the date of the refusal to return the goods. The action there was one of detinue. The plaintiff who was a tenant of the defendants surrendered his tenancy in June, 1940, and, by arrangement with the defendants left on the premises certain goods belonging to him. In 1943, after his return from a period of military service, the plaintiff found that the goods were missing, some of them having been sold by the defendants. On October 6, 1943, the plaintiff through his solicitors demanded the return of the goods and, on the defendants' refusal to comply, brought an action against them claiming the return of the goods and, in the alternative, the payment to him of their value and damages for their detention. It was con- tended on behalf of the defendants that a demand by the plaintiff for the return of the goods having been refused by the defendants several months before the issue of the writ; the proper assessment of the value of such of the goods as had not been returned by the defendants should have in accordance with their value on the date when the cause of action arose, which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they say We have proved that we converted some of your goods and therefore, we can have the benefit of any lower value prevailing at the date of the conversion . It is, however, clear that it is no answer for a bailee, when sued in detinue, to say that he has by his own misconduct incapacitated himself from complying with the lawful demand of the bailor-of. Wilkinson v. Verity (supra). It seems to us that the defendants are, in effect, saying Your real remedy is in conversion, but the bailor can, in such circumstances elect to sue in detinue (at any rate where he was not aware of the conversion at the time), and there is no reason why the value of the goods in fact converted should be assessed on a different basis from the value of the goods which the bailee has not converted but which for some other reason be fails to re-deliver. These observations are the basis of the headnote which says that the same principle applies whether the defendant has converted the goods by selling them or has refused to return them for some other reason. This decision of the Court of Appeal lays down that where the defendant has been guilty of wrongful conversion of the goods or the wrongful de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... damages in a case that raised the point very neatly. In 1940 a bailor agreed with a bailee that the latter should gratuitously store his furniture in her house. In 1944, the bailee wished to get rid of the furniture and, after fruitless attempts to get in touch with the bailor, sold it. The furniture realised pound 13 at a public auction. In 1947 the bailor sued for detinue and conversion, and the current value of the furniture was now assessed at pound 115. Lord Goddard C. J. (with whom Tucker L. J. and Jenkins J. concurred) stated that the measure of damages is the same in conversion as in detinue, where the facts are only that a defendant has the goods in his possession and could hand them over, and would not do so and as a result the damages fall to be assessed as at the date of the verdict or judgment. These observations of Goddard C. J. were understood by Denning J. in Beaman v. A. R. T. S. Ltd. (supra) as considerably limiting the scope of Rosenthal v. Alderton (supra). The following comment oil the case by Winfield on Tort, 6th Edition at page 442 may be noted with interest: It seems, however, that Rosenthal's case simply laid down that where the plaintiff sues in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the date of the conversion, a distinction has to be drawn. If the increase is due to the act of the defendant, the plaintiff has not title to it, and his claim is limited to the original value of the chattel. Thus, in Munro v. Willmoti ([1949] 1 K. B. 295) the plaintiff in 1941 deposited a car in the defendant's yard. In 1945, the defendant, after endeavouring without success to communicate with the plaintiff, sold the car, having spent pound 85 on repairs necessary to put it into a saleable state. Lynskey J. assessed the value of the car at the date of the judgment as pound 120, but hold that the defendant is entitled to credit, not from the point of view of payment for what he has done, but in order to arrive at the true value of the property which the plaintiff has lost : if the repairs had not been done the car could only have been sold for scrap . It may be noted that Lynslkey J. approved of this statement of the law as enunciated in Salmond. Paton, however, in his Bailment in the Common Law points out at p. 412 that there is a tendency to consider the merits of each case in order to reach a reasonable solution ; although the theoretical rule is that the def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds are of such a nature that their value fluctuates greatly the courts have been prepared to depart from this rule. Thus in New York, where stock is concerned, the courts allow the owner to recover the highest value to which the stock rose a reasonable time after he learnt of the conversion, the emphasis on the reasonable time being to prevent speculation by delaying unduly the initiation of the action. California allows the highest value reached between the date of the conversion and the time of trial. In Texas the highest intermediate value is allowed in cases of wilful wrong or gross negligence, but only the value at the date of the conversion as against a blameless defendant. (See also Restatement of the Law, Volume on Torts, pages 650, 653 and 927). And further at page 410: The decisions illustrate the way in which the merits of the defendant's case have been allowed to determine the technical question of the method of calculating damages. In England, these considerations have not been discussed so openly, but their influence on decisions is seen in the judgments in Sachs v. Miklos (supra), where the question of reasonable speed in bringing the action was discusse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endant do deliver to the plaintiff the goods thus wrongfully detained by him or pay in the alternative the value thereof which can only be ascertained as on the date of the verdict or judgment in favour of the plaintiff. Winfield thus enunciates the position in his treatise on Tort, 6th Edition at page 414: The significance of the date of the refusal of the plaintiff's demand is that the defendant's failure to return the goods after that date becomes, and continues to be, wrongful, and damages are recoverable for wrongful detention after that date until the goods are returned or payment of their value. The date of the defendant's refusal cannot convert a claim for the return of the goods into a claim for payment of their value at that date. It is, therefore, clear that in actions for wrongful detention the plaintiff is entitled on default of the defendant in re-delivering the goods to him, to payment in the alternative of the value of the goods thus wrongfully detained as at the date of the verdict or judgment, in other words, at the date of the decree. We are, therefore, of opinion that the appellants were entitled to recover from the respondent the value of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s' hire equipment as from that date. The plaintiffs thereafter wrote a number of letters to the defendant demanding the return of their equipment but received neither their property nor any satisfactory reply, and they issued a writ claiming the return of their equipment or its value, and damages for the period of its detention, which at the trial was shown to be for 43 weeks. Tile question that arose for consideration was what was the quantum of damages which the plaintiffs were entitled to recover and it was held that in an action in detinue in respect of a chattel which the plaintiff, as part of his business, hires out to users, the plaintiff, if the defendant has during the period of detention made beneficial use of the chattel, is entitled to recover as damages the full market rate of hire for the whole period of detention. After setting out the passage above quoted Denning L. J. continued at page 254: If a wrongdoer has made use of goods for his own purpose, then he must pay a reasonable hire for them, even though the owner has in fact suffered no loss. It may be that the owner would not have used the goods himself, or that he had a substitute readily available, which h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ach truck per day. The appellants might not have been able to hire them out for every day of the period of wrongful detention by the respondent, viz., from August 1, 1942 to July 7, 1944. As the learned judges of the High Court have observed, there might be days when the trucks would be out of use; there might be days when the trucks would lie idle for repairs and overhaul and so forth; that would only go to reduce the number of days for which the appellants would be entitled to recover the damages for such wrongful detention. If the learned judges of the High Court had on taking all the circumstances into consideration arrived at the figure of ₹ 5,953 as the amount of hire which could have been reasonably earned by the appellants in the event of the re-delivery of the trucks by the respondent to them on August 1, 1942, their judgment in this behalf could not have been success-fully impeached. What they did, however, was to confine the appellants' claim to ₹ 5,953 on the ground that the appellants had claimed that amount in the first instance and had paid the court-fee on the same. They, therefore, took it that that sum of ₹ 5,953 represented a fair amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
