(256 F.)

"The property for which the writ was brought in this case is ninety-eight and a half bushels of corn, which is a perishable article, and which ipso usu consumitur; and, upon proof made at the trial that the corn had perished or been consumed, the jury might well give a verdict for damages, embracing the value of the corn, of which in such case the defendant could have no return, for that is the principle of the rule as laid down by Lord Hale. As, therefore, the verdict in this case was given for the value of the corn, it must be intended that proof was made at the trial, that the corn had perished or been' consumed, and then the verdict is well enough; and the judgment must follow the nature of the verdict, and cannot be pro retorno habendo,"

Followed later by the case of Davis v. White, Sheriff, 1 Houst. (Del.)

228.

In providing in the alternative several processes for redress by the successful party, section 7 of the Pennsylvania Act provides at least what the common law provided, when the verdict was for the defendant, namely: a process for the return of the goods when they can be reached and their return be enforced, together with a fieri facias clause for damages if any have been awarded for the caption and detention of the goods (one form of damages at common law): and also, for damages for their caption and detention, if any be awarded; and finally, suit on the bond for the value of the goods (a form of damages at common law), damages for the caption and costs.

Admittedly, the verdict in this case is somewhat unusual in form, being made up of two distinct parts dealing with two subject matters. One part, which is for money, means something. Evidently this money part is for some loss the defendant had sustained by the replevy of its chattels. The award cannot be said to be for damages for caption and detention for there is no evidence of such damage except as is always implied in such a verdict. The verdict awarding a sum of money must be presumed to be based on evidence, and it is valid if evidence can. be found to sustain it. There is in the case such evidence, and this evidence is for damages which the defendant suffered in having its chattels replevied, not those incident to the caption and detention such as deterioration, but damages which were sustained by the defendant in having its chattels taken from it and so dispersed that they could not be restored to it. This is one species of damages recoverable at common law, and this is the same species recoverable under section 7 of the Pennsylvania statute on a finding of "value" of the property taken and not returned. It is unimportant that the finding be shown in words to be the value of the chattels if the evidence shows that fact. As the evidence amply sustains such a finding, the verdict is valid equally at common law and under section 7 of the Pennsylvania Act.

So far, the form of the judgment is without fault. In the other part of the verdict, there is the expression "special machinery and appliances to remain the property of the defendant." These chattels belonged to the defendant and title to them never was in dispute. They came into the case only as a claimed ingredient of damage. As we regard this concluding expression of the verdict, it was nothing more than redundance. All that it did was to show the very practical way. in which the jury disposed of the element of damage which the defendant had claimed for money expended in the equipment of its plant for the finishing of shells under the contract. We find no error here.

[4] The next question is, whether the theory of the court on which it admitted evidence in proof of the value of the shells was proper. The jury having determined by their verdict that the title to, or property in the "work," was in the Manufacturer, that is (in the language of the Pennsylvania statute), "in the party who has not been given possession of the same," they were permitted by the court to find the "value" of the property on evidence which the Purchaser now asserts was improper. This evidence showed the items by which the defendant computed value. Speaking in round numbers these items. embraced labor and material, $53,000.00; special machinery and appliances (which as appears by the verdict, the jury did not assess against the Purchaser as damages but left with the Manufacturer as its own property), $7,000.00; proportion of overhead charges, $35,000.00; total cost expenditures, $96,000.00; and finally a reasonable manufacturer's profit in addition to cost; less a credit on the whole of $18,000.00.

No exception to the court's action admitting cost items is very seriously urged. The principal exception goes to the admission of evidence of the manufacturer's profit on the shells in their unfinished condition when taken from the Manufacturer on the Purchaser's writs of replevin. At the trial, the Manufacturer made an offer to prove "what were the disbursements necessarily made by the defendant in the course of the performance of the contract, and what under the circumstances was a reasonable profit margin on the manufacturer's work, this for the purpose of establishing the value to the defendant at the time of the taking of the defendant's property in the goods seized." On this offer the court ruled that the Manufacturer was entitled to a profit and permitted it to prove that such work normally is done on a basis of cost plus a profit and that the ordinary profit for such work is a given percentage on the proven cost. On this tender there seems both here and below to have been some confusion with reference to the precise object of the court's ruling, the suggestion being that the Manufacturer was allowed to recover in this action of replevin damages in the nature of profits which it would have made on the contract had the contract not been terminated by the breach of the Purchaser, profits of this character being of course recoverable only in an action of assumpsit. We do not find this to be either the purpose or the effect of the court's ruling. On the contrary, the court admitted testimony to prove what was a manufacturer's profit on the shells in their unfinished condition at the time they were replevied, not the profit which would have been made on the contract, if completed, raising squarely the question, whether the "value" of the shells to the Manufacturer at that time included a profit item in addition to items of cost.

We are of opinion that the court made no mistake in this ruling. The Purchaser admits the Manufacturer is entitled to a profit on the work it had done at the time it was stopped, if the work showed a profit instead of a loss. But the Purchaser maintains further that cost alone is the measure of the value of the goods replevied and that the manufacturer's profit on the work done to which it concedes the owner

(256 F.)

of the goods is entitled cannot be recovered in replevin but only in assumpsit. This is correct if profit is not an element of "value."

Value of goods is not what they cost their owner; it is what they are worth to him or to others. This is as true of shells as it is of corn. Clark v. Adair, supra. If the property replevied had been corn instead of shells, we do not think the owner would have been compelled to separate profit from cost and show the value of his corn by proving what it had cost him to raise it; nor do we think the court would have limited his recovery to the cost of planting, tilling and harvesting. The value of corn is its market value, and this may include profit as well as cost.

Being entitled to a profit and being entitled also to have that profit included as an element in the value of the shells, the only question with which we have had difficulty is, whether profit on the shells, considered with reference to their peculiar character, must be withheld from the Manufacturer because of the impossibility of proving it or whether it is capable of proof by some proper evidence. Ordinarily the measure of damages in replevin for the value of the property replevied is its market value, if it has a market value. This, as we have said, is as true of shells as it is of corn. Considering the varying requirements of different belligerent nations with reference to types and dimensions of shells, it is doubtful whether there was a market even for finished shells. Certainly there was no market for unfinished shells; and such shells consequently had no market value. But "the fact that property has no market value does not restrict the recovery to nominal damages only, but its value or the (defendant's) damages must be ascertained in some other rational way and from such elements as are attainable." 8 R. C. L. 488. Another rational way was contained in the Manufacturer's offer of proof and was based upon elements attainable in other shops, where war products were manufactured. In these shops, profits were measured, not by market values which did not exist, but by values which arose from the novelty and difficulty of the work and the unusual conditions under which it was done. Profits may reasonably be supposed to have been within the contemplation of the parties when they made the contract, and a profit on the manufacturer's work at the stage at which the work was stopped, as distinguished from the contract profit, we regard as a proper element of its "value," provable in a case like this on a cost plus basis.

[5] When in July, 1916, the Manufacturer stopped work under the contract because of conduct on the part of the Purchaser which the Manufacturer then thought and the jury have since found made performance on its part impossible, it advertised the shells for sale and notified the Purchaser of its purpose to sell them (using its own language) "to enforce a lien which we have on your material at our plant." On receiving this notice the Purchaser instituted these actions of replevin. At the trial, the Manufacturer did not assert a lien, but stood on its plea of property alone. The Purchaser, maintaining that the Manufacturer's previous claim of a lien was an admission by it that property in the shells was in the Purchaser, presented the following point to the court:

"Third. That under the evidence in the case, particularly the letters from the defendant to the plaintiff, dated July 26 and 27, 1915, the advertisement in the Chester Times, the notice of sale, the defendant is estopped from asserting any claim of property, right or interest in the material described by the writ, and has waived its right to make any such claim, and the verdict must be for the plaintiff."

The court's refusal of the point is assigned as error.

We find in the Manufacturer's claim of lien before trial nothing that estopped it asserting its property right at trial. While it was a claim of a legal right which the Manufacturer did not have, it does not appear to have been made for the purpose or with the effect of inducing the Purchaser, in reliance upon it, to part with any advantage or causing it to suffer any prejudice. Both parties later stood just where they stood before. The staternent was nothing more than a misconception by the Manufacturer of its legal remedy and involved none of the elements of estoppel.

The only other assignment of error which we shall discuss is the court's refusal to allow the Purchaser to prove counter damages because of the Manufacturer's alleged defective workmanship on the shells. This assignment arose on a stipulation between the parties entered into after the shells had been replevied and while the Manufacturer was arranging to hold them by giving counter bond. On abandoning this course, the Manufacturer obtained an admission by the Purchaser in a stipulation in the words following:

"And now, August 11, 1916, it is stipulated that the time for filing a claim property bond be extended for two weeks but that plaintiff shall be at liberty to remove within one week such of the material replevied as it admits for all the purposes of this case to be not defective under the terms of the contract between the Canadian Car & Foundry Company, Limited, and The Pennsylvania Iron Works Company."

Having obtained a release of the shells from the Manufacturer's proposed counter bond only by admitting that they were not defective, it cannot seriously be urged that the court erred in refusing to allow the Purchaser to avoid the effect of its admission and to profit by denying it.

Another position taken by the Purchaser with respect to this stipulation is, that when the defendant agreed that the plaintiff should take away the shells, it waived its right to plead property in this action and permitted itself to be relegated to an action on the contract against the Purchaser wherever it might be found. We discover no substance in either of these positions.

Finding no error in the trial of this case, we direct that the judgment below be affirmed.

Number 2362.

[6] This action of replevin was for shells on which the Manufacturer had done no work. Property in the shells admittedly was in the Purchaser and no property was pleaded by the Manufacturer. It had done no work on the shells, and therefore, by the definition of clause 1 of the contract, it had acquired no property in them. The Manufacturer, however, claimed the right to the immediate and exclusive

(256 F.)

possession of the shells, not because of a property interest but under a lien against them, which, if such existed, could be enforced in an action of replevin by virtue of section 6 of the Pennsylvania statute (Act of April 19, 1901, P. L. 88), in which it is provided, that if, on the trial of title and right of possession of goods and chattels “any party be found to have only a lien upon said goods and chattels, a conditional verdict may be entered, which the court shall enforce in accordance with equitable principles."

The facts on which the Manufacturer based its claimed lien are these: When the breach in the contract occurred, the Manufacturer notified the Purchaser that unless it promptly removed the shells, it would charge for the expense of retaining them on its premises, involving costs of storage, watchman, insurance, etc. The shells remained with the Manufacturer until they were replevied. At the trial the Manufacturer claimed and was allowed to prove a lien for storage, etc., and the jury found a verdict for the plaintiff "upon the condition of paying the defendant the sum of $375.00."

The right of the Manufacturer to enforce its lien as a condition to recovery by the Purchaser, depended, of course, upon the Manufacturer having such a lien. The trial judge very properly ruled that such a lien could exist only by reason of a contract either express or implied. Concededly, it did not arise from the written contract between the parties. We find in the case no evidence of any other express contract. If it arose from contract at all, it must have arisen from an implied contract. While the law might perhaps imply a contract between the parties, making the Purchaser liable to the Manufacturer for moneys expended in and about its business, we know of no such implied contract that raises an implied lien. The lien claimed in this case admittedly was not given by any statute of Pennsylvania, nor by any rule of the common law with which we are familiar. In fact, no case has been cited and no principle has been invoked in support of the lien which the Manufacturer asserted and the jury found. In this we think there was error, and direct that the judgment below be reversed.