## Facts

- James A. Cullimore & Co. (Cullimore) held a chattel mortgage giving it a special interest in certain personal property in Edward E. Brook’s possession, securing a note of $8,147.26.
- Cullimore filed a replevin action in the District Court of Oklahoma County seeking immediate possession of the property, or (if delivery could not be had in substantially the same condition as when suit began) a money judgment for the property’s value.
- In its replevin affidavit, Cullimore stated the property’s aggregate value was $2,500, and it also sought costs and attorney’s fees (including a claimed fee amount of $1,160.44).
- Brook posted a redelivery bond and retained possession of the property while the case proceeded.
- Brook attempted to end the case by offering to confess judgment for $2,500 (the value stated in the affidavit) and a “reasonable” attorney’s fee, depositing $2,500 with the court clerk and also tendering the claimed attorney-fee amount and accrued costs.
- Cullimore refused to accept a money judgment and instead sought return of the specific property; it requested a hearing to determine whether the property was available for delivery.
- After a hearing, the trial court limited the matters to (1) whether the property could be returned in substantially the same condition as at the start of the action and (2) attorney’s fees.
- The trial court found the property was available for return in substantially the same condition, ordered Brook to deliver it to Cullimore, declined to enter an alternative money judgment for value, and permitted Brook to withdraw the deposited sums.
- Brook appealed to the Supreme Court of Oklahoma, arguing the court should have entered an alternative money judgment so he could keep the property by paying its stated value.

## Issues

1. In a replevin action under 12 O.S. 1961 § 1580, may the defeated defendant in possession force an alternative money judgment for the property’s value—by tendering the value stated in the replevin affidavit—when the property is available for delivery and the successful plaintiff demands its return?

## Decision

- The Oklahoma Supreme Court affirmed.
- The court held the alternative money judgment in replevin under 12 O.S. 1961 § 1580 exists for the benefit of the wronged, prevailing party and operates only when delivery of the property cannot be had.
- A losing replevin defendant has no right to elect to keep the property by paying its stated value and cannot require the trial court to substitute a money judgment for an order of delivery when the property is available and the prevailing party insists on return.
- Because the property was available for delivery in substantially the same condition and Cullimore insisted on receiving it, the trial court did not err by ordering delivery and declining to enter an alternative money judgment.

## Legal Principles

- Replevin’s primary remedy is recovery of the specific chattel; a money award is a substitute remedy when return is not possible.
- Under 12 O.S. 1961 § 1580, judgment may be for possession “or the value thereof in case a delivery cannot be had”; this alternative money remedy is for the prevailing party’s protection, not the losing party’s convenience.
- The defeated litigant in replevin is not given an option to choose between surrendering the property and paying its value when the property can be returned and the successful party wants it.
- When a defendant retains property under a redelivery bond, the defendant (and sureties) bears responsibility to return the adjudged property in as good condition as at the start of the action, free from material depreciation.
- If the property retains substantial value and is available, the successful party may insist on return, and requiring delivery is proper.

## Conclusion

Brook could not convert replevin into a forced purchase by tendering the affidavit value and demanding an alternative money judgment; because the property was available for delivery in substantially the same condition and Cullimore demanded its return, the trial court properly ordered delivery and the Oklahoma Supreme Court affirmed.


Brook v. James A. Cullimore & Co., 436 P.2d 32 (1967)