Johnson v. Fraser

• Citation: 2 Idaho 404,18 P. 48
• Parties: JOHNSON v. FRASER ET AL
• Decision Date: 20 February 1888
• Court: United States State Supreme Court of Idaho

18 P. 48

2 Idaho 404

JOHNSON v. FRASER ET AL

Supreme Court of Idaho

February 20, 1888

PRACTICE-INSTRUCTION TO JURY.-When a court instructs a jury upon what state of facts they must find a verdict for either party, the instructions should include all the facts in the controversy material to the rights of the parties.

SAME-INSTRUCTIONS PROPERLY REFUSED.-Instructions asked are properly refused when they are not based upon some evidence material to the controversy, although as abstract principles of law they are correct.

CLAIM AND DELIVERY-FINDINGS.-In an action of claim and delivery a general verdict, finding for or against either party is sufficient to enable the court to enter judgment thereon for the return of the property when such return is the appropriate remedy. In such actions, where several articles are sought to be recovered, if either party desires a finding of value of each article, they should request that such findings be made, or he cannot take advantage of their failure to do so.

JUDGMENT-CLAIM AND DELIVERY.-The judgment of the court in an action of claim and delivery, where verdict is given for defendant, should be in the alternative for the return of the property, or its value if a return cannot be had. Where such return is the appropriate remedy, the verdict need not be in the alternative.

FINDING AS TO RETURN OF PROPERTY.-In such cases if either party desire a finding for a return of the property, he should request such finding. If he fail to do so he cannot take advantage of such failure.

(Syllabus by the court.)

APPEAL from District Court, Custer County.

Affirmed.

Charles A. Wood, for Appellant.

The verdict in claim and delivery should be in the alternative either for the delivery of the property to the respondents or, in case delivery could not be had, for the value thereof with damages for its detention. (Code, sec. 387; Norcross v. Nunan, 61 Cal. 640; Holmberg v. Hendy (Cal.), 10 P. 394.)

J. T. Morgan, for Respondents.

The plaintiff, having sold the goods at public auction to different parties, will not be heard to complain that he is not given an opportunity to do that which he has put it out of his power to do. (Flagg v. Tyler, 6 Mass. 33.) If the verdict is sufficient in substance, the fact that it is defective in form will not invalidate it. (Coit v. Waples, 1 Minn. 134 (Gill. 110). If the court should be of opinion that the verdict covers all the issues, and that the judgment should be in the alternative, then this court should not order a new trial, but should correct the judgment. (Berson v. Nunan, 63 Cal. 552; Matlock v. Straughn, 21 Ind. 128; Freeborn v. Norcross, 49 Cal. 313.) When the property cannot be returned, the defendant is entitled to recover the value of the property, with interest, during the period of detention. (Booth v. Ableman, 20 Wis. 602; 2 Field's Lawyer's Briefs, sec. 512.)

BUCK J. Hays, C. J., and Broderick, J., concurring.

OPINION

BUCK, J.

This is an action of claim and delivery, brought by the administrator of the estate of Harry Melrose for certain personal property claimed as a part of said estate. The defendants allege as a defense that they were partners of the deceased at the time of his death; that the property was partnership property, in which each is a one-third owner, and, as surviving partners, they are entitled to the possession thereof as such owners, and for the purpose of settling the estate. The action was tried at the June term of the district court, 1887, Custer county, third judicial district, and comes into this court on a statement of the case on appeal from the order of the court overruling a motion for a new trial. The appellant specifies the refusal of the court to give the second, third, fourth, eighth, and ninth instructions to the jury, requested by plaintiff, and the giving of the first instruction asked by the defendants, as error of the court, and also error in the verdict, in that it is contrary to law, (1) because it is not in the alternative; and (2) because interest can only be allowed by way of damages.

The instructions asked by plaintiff, and refused by the court, are as follows: "No. 2. Unless the jury find from the evidence that a partnership existed, at the time of the death of Melrose, between Melrose, Fraser, and Doherty, of the kind and nature testified to by Fraser and Doherty, they will find for the plaintiff; 3. If the jury should find from the evidence that, at the time of the death of Melrose, only an agreement of partnership existed between these parties, to take effect at some future time, they will find for the plaintiff; 4. Even if the jury should find from the evidence that Fraser had furnished Melrose the large amount of money he claims, or any other sum, still, if no actual partnership existed between the three parties at the time of the death of Melrose, the plaintiff must recover." These three instructions may properly be considered together. In Deasey v. Thurman, 1 Idaho 775, it was held that, "when the court instructs a jury upon what state of facts they must find a verdict for or against either party, the instructions should include all the facts in the controversy material to the rights of the parties upon the claim of the plaintiff or the defense of the defendant." In an action of claim and delivery, the plaintiff must establish, as the foundation of his claim, either absolute ownership of the property, or his right to the possession thereof through some special interest in it. In this action the plaintiff alleges ownership in the property claimed, which is denied in the answer. It is not enough, therefore, for the jury to find that certain facts are established which, in connection with ownership, would establish plaintiff's right, but they must also find that the intestate was the owner, and of this the plaintiff has the burden of the proof. The instructions asked for make no reference to said ownership, and the ruling of the court thereon is sustained by the authority above cited. (Gallagher v. Williamson, 23 Cal. 331, 83 Am. Dec. 114.)

The eighth instruction asked by plaintiff, and refused, is as follows: "If the jury believe from the evidence that plaintiff acted on the representations of defendants that they made no claim to this property in taking possession of the same as special administrator of the estate of Harry Melrose, deceased, that he will be allowed out of said property all the expenses properly incurred by him in the management of said estate, as shown by the evidence, until he was properly notified of the claim of defendants to said estate." This instruction seems to be responsive to certain evidence tending to show that, soon after the death of the intestate, the defendants represented to the plaintiff that they had no claim to the property in dispute, in consequence of which statements the plaintiff took the same into his possession as special administrator, and afterward returned it to defendants on their claiming the same. This is an entirely different matter than that set up in the complaint, not being declared on as a cause of action in the complaint, nor could it have been joined with it, and cannot be adjudicated in this action.

The ninth instruction asked by plaintiff, and refused, is as follows: "If the jury believe from the evidence that Fraser furnished Melrose all the money necessary to purchase and pay for the property in dispute, that fact alone can be no defense to this action. Without some special contract between them alleged and proven, Fraser can only be regarded as a creditor of the estate." While this instruction is correct as an abstract principle of law, yet an inspection of the evidence shows that there is no foundation for the claim that the money was loaned to Melrose. The evidence shows that, if furnished at all, it was furnished to the partnership. Hence, we think it was properly refused as misleading.

The first instruction given by request of defendant, and excepted to by plaintiff, is as follows: "If the jury believe from the evidence that the defendant, William J. Fraser furnished the money for the purchase of the property in dispute under an agreement of partnership between Fraser, Melrose and Doherty, and that said property was so held by them at the time of the death of Melrose, then the jury should find for the defendants." The appellant urges that this instruction is misleading, in that an agreement for a partnership at some future time is not an actual partnership, nor would it give a right of possession to such property to the survivors. We think the construction claimed by appellant for this instruction is not the true one. If an agreement of partnership was consummated, and the money furnished under it, it is a fair presumption that the agreement was in praesenti, unless the contrary appears, and ...