Hammond v. Thompson

• Decision Date: 13 May 1918
• Docket Number: 4168.
• Parties: HAMMOND v. THOMPSON et al.
• Court: Montana Supreme Court

173 P. 229

54 Mont. 609

HAMMOND v. THOMPSON et al.

No. 4168.

Supreme Court of Montana

May 13, 1918

Appeal from District Court, Ravalli County; R. Lee McCulloch, Judge.

Action by Milton Hammond, against James Thompson and Ida Thompson resulting in judgment of nonsuit, and findings for defendants. Plaintiff moved for new trial, and the court ordered that the motion be granted, unless defendants remitted the damages. From such order, after it became absolute, defendants appeal. Affirmed.

S. J Bischoff, of Missoula, for appellants.

O'Hara & Madeen and J. D. Taylor, all of Hamilton, for respondent.

HOLLOWAY J.

This action was instituted by plaintiff to secure possession of certain personal property used in and about the conduct of a hotel and saloon. Some of the property described in the complaint was seized by the sheriff and delivered to the plaintiff. The defendants by answer denied plaintiff's title or right of possession, asserted title in themselves claimed a return of the property seized, and damages for the wrongful detention.

Upon the trial plaintiff failed to make out his case, and a nonsuit was granted. The trial proceeded upon the affirmative defense-so-called counterclaim-and the reply thereto resulting in findings in favor of defendants, one of which assessed the damages for the wrongful seizure and detention at $600. Plaintiff moved for a new trial, and the court directed that the motion be granted, unless within 30 days defendants remitted the amount of the damages. This they refused to do, and appealed from the order when it became absolute.

1. The claim for damages arising from the wrongful seizure and detention of the property in controversy is not in any sense a counterclaim within the meaning of section 6541, Revised Codes, since it arose after the commencement of this action. A counterclaim must be one existing and matured for action in favor of the party asserting it, at the time of the commencement of the action in which it is pleaded. McGuire v. Edsall, 14 Mont. 359, 36 P. 453; Scott v. Waggoner, 48 Mont. 536, 139 P. 454, L. R. A. 1916C, 491.

Section 6760 and 6803, Revised Codes, recognize the right of the defendant in a claim and delivery action, who is awarded a return of the property, to recover damages for the wrongful taking and detention of it. Such damages are merely incident to the right of return, but must be claimed in order to be recovered, and though the pleading is not a counterclaim, it is subject to the general rules which govern a complaint in an action for damages. In the absence of any allegation of special damages, the measure of damages for the wrongful detention of property which has a usable value, as distinguished from its value for sale or consumption, is the reasonable value of its use from the date of seizure to the time of the trial (Morgan v. Reynolds, 1 Mont. 163; Gans v. Woolfolk, 2 Mont. 458; Chauvin v Valiton, 8 Mont. 451, 20 P. 658, 3 L. R. A. 194; Chesnut v. Sales, 49 Mont. 318, 141 P. 986, 52 L. R. A. [N. S.] 1199, Ann. Cas. 1916A, 620), and ordinarily "usable value" means the amount for which such property could be hired (Alexander v. Bishop, 59 Iowa, 572, 13 N. W. 714). This rule is peculiar to actions in replevin. It applies, however, only in cases where the party claiming such damages had the right to use the property, was in a situation to use it,...