Clark v. Oldham, 34262

• Citation: 166 Neb. 672,90 N.W.2d 329
• Decision Date: 31 May 1958
• Docket Number: No. 34262,34262
• Parties: Ervin CLARK, Appellant, v. Ray OLDHAM, Appellee.
• Court: Supreme Court of Nebraska

Page 329

90 N.W.2d 329

166 Neb. 672

Ervin CLARK, Appellant, v. Ray OLDHAM, Appellee.

No. 34262.

Supreme Court of Nebraska.

May 31, 1958.

Syllabus by the Court.

1. It is mandatory that the trial court, without request, correctly instruct the jury as to any issue in the case supported by evidence and the failure to do so is generally prejudicial.

2. A verdict favorable to the defendant in a replevin case should conform to the requirements of section 25-10,103, R.R.S.1943, because in the absence of the findings therein required there is no basis for the rendition of a judgment in the case.

3. If property taken under a writ of replevin is delivered to the plaintiff and the verdict is in favor of defendant, the judgment must be in the alternative for the return of the property or for its value or for the value of the possession of defendant if it cannot be returned and for damages, if any, for illegal detention.

4. The statutory provision for an alternative judgment in an action of replevin, if the verdict is for the defendant, is mandatory.

5. A judgment in replevin for the defendant which is not alternative as the statute requires is error without prejudice if the record in the case establishes that a return of the property cannot be had.

6. If the property involved in a replevin case is delivered to the plaintiff, it will be presumed that it continues in his possession and is capable of being returned to the defendant until the contrary is established.

7. The burden of showing that property taken on a writ of replevin and delivered to the plaintiff cannot be returned is on the defendant.

Burbridge & Burbridge, James W. McGan, Omaha, for appellant.

Frost, Meyers & Farnham, Omaha, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

Appellant, the owner of the property involved in this litigation, made an arrangement with appellee to care for, train, and feed four horses for appellant so that they would be suitable for competition in the 1955 Ak-Sar-Ben racing meet held in Omaha. Possession of two of the horses was delivered to appellee during the first part of January 1955, a third one at a later date, and the fourth March 11, 1955.

The agreement of the parties concerning the care, feeding, and training of the horses was oral. The evidence concerning it consists of the testimony of appellant and the testimony of appellee which in this respect is sharply conflicting. Appellant said his agreement with appellee was that he, appellant, would furnish the horses, the feed for them, and all necessary 'tack' or equipment; would deposit with the racing secretary the amount required to guarantee payment of the compensation of the jockeys who rode the horses; and would pay one-half of the incidental expenses such as jockey fees, shoeing the horses, and doctor and drug bills that might be required. He testified that appellee agreed to care for, feed, and train the horses; to attend to all matters incidental to having them engage in racing; and to pay one-half of the incidental expenses. Appellant testified the amount received as purses won by the horses was to be divided equally between him and appellee and he was to receive no other compensation. Appellant testified he performed the agreement and at the commencement of this litigation he owed appellee no amount.

The testimony of appellee was that he was employed by appellant to care for, feed, train, and race the horses for a certain amount for each horse for each day the horses were in the charge of appellee and that appellant was to furnish all feed and all incidental requirements. Appellee testified that he performed all of his obligations under his agreement with appellant; that he had possession of the horses until June 18, 1955, when they were taken from him by appellant; and that appellant owed appellee $1,989.50 for his care and training of the horses and the feed bought and furnished them.

Appellant brought this replevin action June 18, 1955. The horses and equipment given by him into the custody of appellee were taken on a writ of replevin and the property was by the officer delivered to appellant. Appellant in his petition alleged that he was the owner of the property, was entitled to the possession of it, and that appellee wrongfully detained the possession of the property from appellant. Appellee admitted the ownership of the property by appellant, denied all other claims of appellant in reference to the property, and alleged that appellee was entitled to the possession of it because he had an agistor's lien thereon in the amount of $1,989.50 because of the feed, care, and training furnished the horses of appellant in the amount aforesaid. Appellee asked for an adjudication that he was entitled to the possession of the horses on June 18, 1955, by reason of his lien; that the possession of the horses be restored to him; or, in the alternative, that he be awarded recovery of the aforesaid amount from appellant. The reply was a denial of the new material contained in the answer.

The verdict of the jury was for appellee for money only in the sum of $1,989.50. The motion of appellant for a new trial was denied and a judgment for money only was rendered on the verdict in the amount thereof in favor of appellee and against appellant.

The issue in this case was whether or not appellee had, at the commencement of this case, a lien on the property involved and, therefore, had the right of the possession of it; and if he had, what was the value of his right of possession of the property. The evidence made a question for the jury. It would have sustained a verdict for either of the parties.

Appellant assigns error and claims prejudice because the trial court gave instruction No. 13 to the jury which is as follows: 'If you find for the plaintiff that he was entitled to the possession of the horses and equipment on June 18, 1955, your verdict will be for the plaintiff. If you find that the defendant was entitled to retain the possession of said horses and equipment until the plaintiff had fully paid him for training services, feeding and care of said horses, your verdict will be for the defendant for the amount, if any, you find is owing by the plaintiff to the defendant.' The second sentence of this instruction was, under the circumstances of this case, an incorrect statement of the law. Replevin is a possessory action. A judgment for money only in the amount of the lien asserted by appellee was not justified by the law. The verdict was obedient to the last sentence of the quoted instruction. It states: 'We, the jury duly impaneled and sworn in the above entitled cause, do find for the said defendant, and fix the amount of his recovery at $1989.50.' The trial court rendered a judgment in favor of appellee for money only, and nothing more, for the amount of the verdict, with interest. The verdict was for the amount appellee claimed appellant owed him for his services or, in other words, it complied with the requirement of the instruction that '* * * your verdict will be for the defendant for the amount, if any, you find is owing by the plaintiff to the defendant.' It was not for the value of the possession of the property taken by appellant from appellee or for damages for withholding the property from appellee. There was no evidence of any damages for withholding the property and the instruction did not permit a finding as to the value of any right of possession appellee had to the property. The verdict and the judgment are each contrary to the law of replevin as it is written in this state. The contents of a verdict favorable to the defendant in a replevin case are specified by section 25-10,103, R.R.S.1943: 'In all cases, when the property has been delivered to the plaintiff, where the jury shall find upon issue joined for the defendant, they shall also find whether the defendant had the right of property or the right of possession only, at the commencement of the suit; and if they find either in his favor, they shall assess such damages as they think right and proper for the defendant; for which with costs of suit, the court shall render judgment for the defendant.' The characteristics of a judgment in a replevin case are declared in section 25-10,104, R.R.S.1943: 'The judgment in the cases mentioned in sections 25-10,102, 25-10,103 and 27-1509 shall be for a return of the property or the value thereof in case a return cannot be had, or the value of the possession of the same, and for damages for withholding said property and costs of suit.'

The act requiring judgment to be rendered for a return of the property or the value thereof in case a return cannot be had was passed in 1873. G.S. c. 57, s. 1010, p. 713. It exists now as it was originally enacted. Section 25-10,104, R.R.S.1943. The object of an action of replevin is to recover specific personal property, and liability for the value of the property accrues only if a return of the property cannot be had. Lee v. Hastings & McGintie, 13 Neb. 508, 14 N.W. 476; Barstow v. Wolff, 148 Neb. 14, 26 N.W.2d 390, 170 A.L.R. 118.

The section of the act of 1873 referred to above was considered in Hooker v. Hammill, 7 Neb. 231, and this court therein concluded: 'In replevin, where a verdict is returned in favor of the defendant, the judgment must be for a return of the property, or the value thereof in case a return cannot be had, or the value of the possession of the same, and for damages for withholding the property and costs of suit.'

Singer Mfg. Co. v. Dunham, 33 Neb. 686, 50 N.W. 1122, 1123, approved the interpretation this court gave the provision requiring a judgment in replevin to be in the alternative when the finding is for the defendant: 'In the case of Hooker v. Hammill, 7 Neb. 231, it was held that the provision of the statute, requiring the judgment in cases like the one at bar, when in favor of the defendant,...