#### OIL CO. v. GROCERY CO.

(Filed November 15, 1904).

1. CLAIM AND DELIVERY — Judgments—Alternative—Replevin—The Code, sees. 824, 481 — Acts 1885, eh. 50.

In claim and delivery the judgment should be for the delivery of the property or its value.

2. APPEAL — Verdict.

Where a verdict is set aside, not as a matter of discretion, but as a matter of law, an appeal lies.

3. APPEAL — Judgment—Verdict.

The refusal of a judgment upon a verdict is a denial of a substantial right, and is appealable.

ActioN by the Globe Oil Company against the Messick Grocery Company, heard by Judge W. B. Allen and a jury, at March Term, 1904, of the Superior Court of Forsyte County. From a judgment for the plaintiff for less than the relief demanded he appealed.

L. M. Swink, for the plaintiff.

No counsel for the defendant.

Clare, C. J.

This was an action for the recovery of personal property, or for its value if it cannot be delivered. The jury found on issues submitted that the plaintiff was the owner and entitled to the possession of the property and that *355its value was $362.80. It bad. been agreed by the parties that if the plaintiff should recover damages he would be “entitled to recover interest on the value of the property from May 1, 1902, and nothing more.” The plaintiff asked judgment upon the verdict for recovery of the property, or if this could not be had, for recovery of its value as assessed by the jury with interest from the first day of the term, and interest on the value ox the property from May 1, 1902, for its detention. This last is clearly the meaning of the agreement of the parties as to damages.

The plaintiff was entitled to the alternative judgment as asked, for the delivery of the property if to be had, and, if not, then its value as assessed by the jury. The Code, sec. 431; Council v. Averett, 90 N. C., 168; Hall v. Tillman, 103 N. C., 276; Grubbs v. Stephenson, 117 N. C., 66. The Code, sec. 324, was amended by chapter 50, Acts 1885, to make the condition of the bond and the liability of the sureties harmonize with the 'terms of the judgment against the defendant. To same purport, Jarman v. Ward, 67 N. C., 33; Smithdeal v. Wilkerson, 100 N. C., 55.

The Court below refused the alternative judgment allowed by section 431 of The Code on the ground that there had been no evidence of the destruction of the property, and set aside the finding upon the issue as to the value of the property as immaterial, and rendered judgment for the recovery of the property only, retaining the cause that the issue as to the value of the property and damages be ascertained after the return of the execution. This was taking “two bites at a cherry.” This is one of the very few cases in which an alternative judgment is authorized. If the sheriff cannot find the specific property it would be a useless waste of time 'to report that fact to the next term and cause another jury to determine its value, when the whole matter can be passed upon as authorized by The Code, secs. 324 and 431, at one *356trial, execution can issue to tbe sheriff to take the property into his possession, or, if the property cannot be found, to collect its value as assessed by the jury.

The verdict upon the issue as to. the value of the property having been set aside, not as a matter of discretion, but upon a ruling as to its legal effect, an appeal lay. Wood v. Railroad, 131 N. C., 48; Thomas v. Myers, 87 N. C., 31; Gay v. Nash, 84 N. C., 333; Bryan v. Heck, 67 N. C., 322. The refusal of judgment upon the verdict was the denial of a substantial right and appealable. Griffin v. Light Co., 111 N. C., 438.

The order setting aside the verdict upon the second and third issues must be reversed, and the cause remanded that judgment may be entered upon the verdict in accordance with this opinion.

Error.