219 U.S.

320
31 S.Ct. 241
55 L.Ed. 237

WILLIAM W. BIERCE, Limited, Plff. in Err.,

v.
WILLIAM WATERHOUSE and Albert Waterhouse,
Executors under the Will and of the Estate of Henry
Waterhouse, Deceased.
No. 508.
Submitted December 12, 1910
Decided January 16, 1911

This was an action for breach of the condition of a redelivery or return

bond executed by the defendant to a certain replevin suit instituted in a
circuit court for the territory of Hawaii. The bond was in these words:
Circuit Court, Third Circuit, Territory of Hawaii.
$1 stamp.
William W. Bierce, Limited, a Corporation, Plaintiff,
v.
Clinton J. Hutchins, Trustee.
Replevin.
Return Bond.
Know all men by these presents:
That we, Clinton J. Hutchins, trustee, as principal, and Henry Waterhouse
and Arthur B. Wood, as sureties, are held and firmly bound unto William
Bierce Company, Limited, tis successor or successors and assigns, in the
sum of thirty thousand (30,000) dollars, for the payment of which, well
and truly to be made, we bind ourselves, our successors herein and
administrators, jointly and severally, firmly by these presents.

The condition of the foregoing obligation is as follews:

That whereas the said William W. Bierce, Limited, has begun in the
circuit court of the third circuit of the territory of Hawaii a replevin suit
against Clinton J. Hutchins, trustee, to recover from him certain property
specifically set forth in the bill of complaint filed in said suit, and of the
value of $15,000, as stated in the affidavit filed therein, and has requested
that the said property be taken possession of by the high sheriff of the
territory of Hawaii, or his deputies, and turned over to said plaintiff; and
whereas said defendant is desirous of having said property returned, and
has required the return thereof from said high sheriff and his deputies:
Now, therefore, if the said property and all thereof shall be well and truly
delivered to said plaintiff, if such delivery be adjudged, and payment to
said plaintiff be well and truly made of such sum as may, for any cause,
be recovered against the defendant, then this obligation to be null and
void; otherwise to be and remain in full force and effect.
In witness whereof we have hereunto set our hands and seals this 21st day
of July, A. D. 1903.
(Signed) Clinton J. Hutchins, Trustee.
(Signed) Henry Waterhouse, Surety.
(Signed) Arthur B. Wood, Surety.
The foregoing bond is approved as to its sufficiency of sureties.
Dated July 21, 1903.
(Signed) A. M. Brown,
High Sheriff.
The replevin suit referred to was instituted July 20, 1903, by a corporation
styled William W. Bierce, Limited, against Clinton J. Hutchins, trustee,
and was for the recovery of certain railway material which had been
conditionally sold to the Kona Sugar Company, another corporation. The
property of the latter company, including this material, was acquired at a
receiver's sale by Hutchins, trustee, with notice that the title had been
retained by the Bierce Company, and that the property had not been paid
for. The plaintiff's affidavit (Rev. Laws [Hawaii] 2102) stated the value
of the material which it was sought to reclaim at $15,000, and a bond in

double that sum was duly executed, with the usual conditions of such
replevin bonds. The defendant Hutchins thereupon, in order to retain
possession of the material claimed, executed a redelivery or return bond
under 2112, Rev. Laws (Hawaii), being the bond upon which the
present action is based.
The replevin suit resulted, on March 19, 1904, in a judgment for the
plaintiff and against the defendant Hutchins, trustee, for the return of the
property and damages for its detention, or in default of return, that the
defendants pay the value of the property, which was adjudged to be
$22,000.
Inasmuch as the defense by the surety in the action upon the return bond
referred to grows in part out of matters which were litigated in the replevin
suit, we must state somewhat fully the proceedings in that action. That
case, upon a bill of exceptions, was taken to the supreme court of Hawaii.
Certain of the exceptions taken by the defendant Hutchins were sustained
in a judgment rendered January 28, 1905, one of which was that the trial
court had erred in not rendering judgment for the defendant non obstante
veredicto. See William W. Bierce v. Hutchins, 16 Haw. 418. A motion for
a rehearing was disposed of in that court April 29, 1905 (see 16 Haw.
717). On May 6, 1905, a judgment was entered reversing the judgment of
the circuit court, and remanding the case, with direction to render a
judgment for defendant non obstante veredicto. Thereupon an appeal to
this court was allowed, where the judgment of the Hawaiian supreme
court was reversed, for the reasons appearing in the opinion reported in
205 U. S. 340, 51 L. ed. 828, 27 Sup. Ct. Rep. 524, and the case remanded
to that court. Thereupon the supreme court of Hawaii held that the
defendant Hutchins was then entitled to have a hearing upon other
exceptions not passed upon at the first hearing. These were therefore
heard and overruled. 18 Haw. 374. An appeal from that judgment was
taken to this court, and dismissed, as not from a final judgment. 211 U. S.
429, 53 L. ed. 267, 29 Sup. Ct. Rep. 122.
Pending the review proceedings above referred to, the plaintiff, upon
cause shown, obtained a rule on the defendant Hutchins to give a new
redelivery bond. Failing in this, an execution issued to recover the
property which the defendant had been directed to return, and for the
damage for detention and costs. These damages, amounting to $1,050, and
the taxed costs, were paid and may be dropped from consideration. The
sheriff returned that he was unable to obtain possession of the materials
for which the action had been instituted, and therefore returned the
execution unsatisfied.

Pending the review proceedings already stated this action was begun
against the obligors and the executors of Henry Waterhouse, one of the
sureties upon the return bond given by Hutchins, as stated. Wood, the
other surety, was sued, but was not found. Hutchins, for reasons
immaterial, was dropped out. Upon the issued joined there was a verdict
and judgment against the executors of Waterhouse for $22,000, the value
of the property which the obligor had failed to return, as required by the
judgment in the replevin suit, that being the value adjudged in that action,
together with interest and costs of former actions not paid, the whole
aggregating $28,156.74, for which there was judgment.
A bill of exceptions was taken from this judgment to the supreme court of
Hawaii, which court, passing over the great majority of exceptions without
ruling, sustained one which assigned error in the overruling of the motion
of the defendants below for judgment non obstante veredicto.
The case having been remanded for judgment pursuant to the opinion and
mandate, there was a judgment notwithstanding the verdict for the
defendant. This in turn was affirmed by the supreme court of the territory,
and the present writ is sued out to review that judgment.
Messrs. Frederic D. McKenney and Henry W. Prouty for plaintiff in error.
[Argument of Counsel from pages 325-327 intentionally omitted]
Messrs. David L. Withington, William R. Castle, W. A. Greenwell, and
Alfred L. Castle for defendants in error.
Statement by Mr. Justice Lurton:
[Argument of Counsel from pages 327-331 intentionally omitted]
Mr. Justice Lurton, after making the above statement, delivered the
opinion of the court:

The right to have this judgment reviewed by this court involves the review of
the judgment upon which the mandate issued, and necessarily brings here the
first as well as the second bill of exceptions and transcript as one case. As it
appears from the first bill of exceptions and the opinion and judgment in that
case that the plaintiffs in error in that case, the defendants in error here, had
taken many exceptions to the judgment against them which were not passed
upon by the supreme court of the territory, it must follow that, if we shall find
that that court erred in reversing the judgment upon the single error considered,

that the other exceptions and errors not considered are now open for review,
inasmuch as the judgment might have been reversible for other errors not
considered. The practice adopted by the supreme court of the territory of
passing without deciding other errors assigned upon a judgment is not
approved, since it is likely to involve further review proceedings and duplicate
appeals. Especially is this so in cases which are subject to the appellate
jurisdiction of this court. The single ground upon which the supreme court of
Hawaii reversed the judgment in favor of the Bierce Company, and against the
executors of the surety upon the return bond made by the defendants in the
replevin suit, was that, by two amendments made to the declaration in the
replevin suit, the value of the property which the plaintiff sought to reclaim was
increased from $15,000 to $22,000, whereby, as the court below held, the
liability of the sureties was enlarged beyond their undertaking. The effect of
this was held to discharge the sureties. In this we think the court erred.
2

The plaintiff, to make out its case, introduced in evidence, together with other
matters, the pleadings, the judgment, the return of the sheriff upon the
execution for a return of the property unsatisfied, and the return bond. The
judgment, as before stated, was for a return of the property and costs, and
$1,045, damages for detention, and, in default of a delivery of the property, that
the defendant Hutchins, trustee, pay the value thereof, found to be $22,000, for
which there was judgment.

The penalty of the return bond was $30,000. The damages laid in the
complaint, as amended, were $28,156.74, and the judgment in the trial court
upon the verdict was for the full damages claimed.

At the close of all the evidence, the defendants moved the court to instruct a
verdict for the defendants. This motion was based upon several grounds. The
principal one was that the transcript of the record in the replevin action showed
(a) that the plaintiff in that action had, in the affidavit required by 2102, Rev.
Laws (Hawaii), executed before the issuance of the writ of replevin, stated the
value of the property claimed to be $15,000; (b) that the penalty of the replevin
bond was in double this value; (c) that the return bond recited that the value of
the property claimed had been stated in the complaint in the replevin
proceeding to be $15,000; (d) that the complaint had been subsequently
amended so as to state the actual value to be $20,000, and a second time
amended so as to state the actual value to be $22,000; and that the legal effect
of these amendments was to release and discharge the sureties.

The motion for an instructed verdict was overruled and the case submitted to
the jury, who found the actual value of the property claimed to be $22,000, and

for this there was an alternative judgment, as stated before.

6

After verdict the defendants moved a judgment non obstante veredicto upon
like grounds. This too was denied.

On the appeal of the defendants to the supreme court of Hawaii, the action of
the trial court in allowing the amendment of the complaint so as to increase the
value of the property in the manner stated was assigned as error. Upon this
matter the supreme court said:

'The only exceptions to rulings prior to the judgment on which the defendant
relied in argument are (1) to allowing the plaintiff to amend its complaint by
changing the averment of the value of the property, first from $15,000 to
$20,000, and then to $22,000. . . .

'The amendments were properly allowed under the statute (Rev. Laws, 1738).
Before the property was delivered to the plaintiff, the defendant obtained a
return of it to himself upon his statutory bond in double the value of the
property as originally stated by the plaintiff. It does not appear that the
defendant's rights were affected by the amendment increasing the value.'
William W. Bierce v. Hutchins, 18 Haw. 511, 522.

10

This brings us to the proposition as to whether a question thus once litigated

and decided in the replevin suit is open for relitigation by the surety when sued
upon the return bond. The surety on such a bond, given in the course of a
judicial proceeding, is represented in that proceeding by his principal. That the
court possessed the power of allowing an amendment which introduced no new
cause of action is plain. The surety became such in contemplation of the
possible exercise of that power. The penalty of the bond was not exceeded, and
an increase in the ad damnum did not introduce a new cause of action.
Townsend Nat. Bank v. Jones, 151 Mass. 454, 24 N. E. 593. By the execution
of the bond, the surety consented to become responsible to the amount of the
penal sum therein named.

11

The only possible objection lay in the question as to whether the plaintiff was
estopped from laying the damages in excess of the value of the property stated
in the original complaint or affidavit. There are cases which hold that, in the
replevin action, the plaintiff, having himself fixed the value of the property
claimed by an affidavit, is estopped thereby from showing that it is of a less
value, if he failed in his suit, though the defendant may show, if he can, that it
was of a greater value. Washington Ice Co. v. Webster, 125 U. S. 426, 31 L. ed.

799, 8 Sup. Ct. Rep. 947. But we are not disposed to think that a plaintiff in
such a suit may not show, especially when, as here, the defendant upon a return
bond was suffered to retain the possession, that he had mistakenly undervalued
the property. We have been cited to no authorities which extend the principle of
estoppel to shut out such an amendment of the ad damnum clause of the
complaint in a replevin action. However this may be, the questions were
directly in issue in the replevin suit, and decided against the defendant therein.
12

One who becomes a surety for the performance of the judgment of a court in a
pending case is represented by his principal, and is bound by the judgment
against his principal within the limits of his obligation. Washington Ice Co. v.
Webster, 125 U. S. 426, 444, 446, 31 L. ed. 799, 806, 807, 8 Sup. Ct. Rep. 947;
Stovall v. Banks, 10 Wall. 583, 19 L. ed. 1036.

13

The issue as to whether the value of the property redelivered to the defendants
was greater than alleged in the plaintiff's affidavit and claimed in the original
complaint, as well as whether the amendment of that complaint was such as to
change the cause of action, were issues made and decided against the principal
in the bond upon which the sureties were bound, and cannot be relitigated, in
the absence of fraud and collusion, by a surety when sued upon the bond.
Townsend Nat. Bank v. Jones, 151 Mass. 454, 459, 24 N. E. 593; Greenlaw v.
Logan, 2 Lea, 185; Kennedy v. Brown, 21 Kan. 171; Hare v. Marsh, 61 Wis.
435, 50 Am. Rep. 141, 21 N. W. 267; Mason v. Richards, 12 Iowa, 74.

14

The motion of the executors of Waterhouse in the trial court for a judgment non
obstante veredicto was predicated upon several distinct grounds. To the action
of the trial court in overruling this motion exceptions were duly taken, and this
action was made the subject of distinct assignments of error upon the writ of
error to the supreme court of Hawaii. That court, as we have already seen,
considered only such of the grounds relied upon as raised the question of the
effect of the increase of the plaintiff's ad damnum clause from $15,000 to
$22,000. Concluding that the necessary legal effect of that amendment of the
complaint was to relieve the sureties upon the return bond, it reversed the
judgment and remanded, with direction to give judgment for the said executors,
notwithstanding the verdict against them. See 19 Haw. 398.

15

The learned counsel for the executors have insisted that if we shall conclude
that the action of the supreme court of Hawaii is not to be supported upon the
single ground considered by it, that it is then the duty of this court to consider
the grounds for the motion not passed upon, and if upon any one them the
judgment of the supreme court of Hawaii may be sustained, its judgment should
not be disturbed. Upon this contention each of the several grounds upon which

such motion was based has been covered by the briefs filed by the present
defendants in error.
16

Among the grounds for a judgment notwithstanding the verdict, not considered,
was, that the judgment of the supreme court of Hawaii, reversing the judgment
in favor of William W. Bierce, Limited, against Hutchins, trustee, was final as
to the surety upon the return bond, and was not subject, so far, at least, as the
surety was concerned, to be reviewed or set aside by any writ of error to this
court, and that the judgment of this court (205 U. S. 340, 51 L. ed. 828, 27 Sup.
Ct. Rep. 524), reversing the judgment of the Hawaiian supreme court, should
not in anywise affect the present defendants in error as representatives of
Waterhouse, one of the sureties upon the return bond. But the judgment of the
Hawaiian supreme court was not final prior to the act of Congress referred to. It
is true that the opinion of the Hawaiian court reversing the judgment of the
Hawaiian circuit court was filed on January 28, 1905, a date prior to the act of
Congress referred to. But the record shows that thereupon a petition for
rehearing was filed, and that a rehearing was denied April 29, 1905 (see
William W. Bierce v. Hutchins, 16 Haw. 717), and that the final judgment,
which was reversed by this court, was not rendered until May 6, 1905, a date
after the law referred to. The effect of the pending petition for a rehearing, if
filed in due time and entertained by the court, as was the case, was to prevent
the judgment from becoming final and reviewable until disposed of. Aspen
Min. & Smelting Co. v. Billings, 150 U. S. 31, 37 L. ed. 986, 14 Sup. Ct. Rep.
4; Re McCall, 76 C. C. A. 430, 145 Fed. 898. Since, therefore, there was no
final judgment prior to the going into effect of the act of Congress of March 3,
1905 [33 Stat. at L. 1035, chap. 1465], the pending litigation was subject to the
power of Congress to allow a review after final judgment, although no such
review had theretofore been admissible. No fundamental right was thereby
denied and the bond must be regarded as having been entered into subject to
such change in remedy or procedure as did not change the contractual rights of
the parties.

17

It is next claimed that this action upon the return bond was premature, because
started during the pendency of the defendant's writ of error in the supreme court
of Hawaii from the judgment in the replevin case. But that writ did not annul
the judgment. The Hawaiian act of 1903, chap. 32, 17, 18, and 19, Rev.
Laws of Hawaii, 1905, 1861, 1864, and 1865, provided for the issuance of
an execution if the defendant should be ruled to give a new return bond upon an
affidavit of insufficiency. This was done and the objection of the defendant
overruled. An execution issued, which was duly returned unsatisfied. The
contention that this act of 1903 did not go into force until after the execution of
the return bond has no merit. Such a bond is always entered into subject to the

possibility of changes in the law of procedure which do not change the contract.
The defendant refused to give the new bond required, and, under the act
referred to, an execution was issued, which was returned unsatisfied. This fact
authorized an immediate suit upon the return bond. There was no error in
holding that the suit was not premature under the act referred to.
18

Another group of assignments relate to an alleged tender of redelivery of the

property by Hutchins, trustee, after the judgment requiring a return. The
insistence was and is that there should have been a directed verdict for the
defendant upon the evidence showing such tender and a rejection by the
plaintiff. The letter in evidence making a tender was not an unequivocal tender.
There was also evidence tending to show the existence of obstacles to a
repossession, which it was the duty of the defendant to have removed; and also
evidence of a conveyance by the defendant of record, which clouded the title.
There was an absence of evidence tending to show any active exertion to
restore the plaintiff's possession, and no evidence that the plaintiff was ever
actually put in repossession. The question was one for the jury, who found for
the plaintiff. The charge was full and fair.

19

There were a vast number of errors assigned. We have referred to those which
were either pressed in argument or have otherwise been deemed of such
importance as to require particular notice. Those not referred to have been
considered, with the result that we find none of them well taken. $The
conclusion we reach is that the judgment of the Supreme Court for the territory
of Hawaii, reversing the judgment of the Circuit Court, and directing a
judgment non obstante veredicto, was erroneous. The second judgment,
affirming the judgment of the Circuit Court upon its mandate, is also erroneous.
$The case must be remanded, with direction to set both judgments aside, and
affirm the judgment of the trial court in favor of the plaintiff, William W.
Bierce, Limited.

20

Reversed.