Lapham v. Osborne

• Decision Date: 20 July 1888
• Docket Number: 1,272.
• Citation: 18 P. 881,20 Nev. 168
• Parties: LAPHAM v. OSBORNE.
• Court: Nevada Supreme Court

18 P. 881

20 Nev. 168

LAPHAM v. OSBORNE.

No. 1,272.

Supreme Court of Nevada

July 20, 1888

Appeal from district court, Douglas county; RICHARD RISING, Judge.

Action by Lapham against Osborne to recover possession of a schooner, together with damages for its detention. From a judgment for defendant, and from an order denying a motion for new trial, plaintiff appeals.

D. W Virgin and R. M. Clarke, for appellant.

Trenmor Coffin, for respondent.

LEONARD C.J.

Action to recover possession of a certain schooner, called the "Lillie Van," together with its rigging, masts, and other property thereon and connected therewith, all of the alleged value of $1,990, and $1,000 damages. It is alleged in the complaint that on June 16, 1886, at Glenbrook, in this state, defendant wrongfully and forcibly, against plaintiff's consent, took all of said property from plaintiff's possession, and has ever since wrongfully and unlawfully withheld the same from plaintiff; that the use of said property, from June 16, 1886, to the time of the commencement of this action, was well and reasonably worth $1,000. Judgment is demanded for a return of the property or its value, for the damages stated, and costs. In his answer defendant admits that plaintiff is, and at all the times mentioned in complaint has been, the owner of all the property described therein. He denies the alleged or any conversion, or that he ever in any manner took said property or any thereof, from plaintiff's possession, or ever wrongfully or unlawfully, or at all, detained or withheld said property, or anything, from plaintiff. He denies all allegations of damage, or that the use of said property during the times stated in complaint, was of any value to plaintiff. He denies that plaintiff, or any one on his behalf, ever demanded said property, or any thereof, or the possession thereof, until September 8, 1886, when the sheriff of Douglas county, under and by virtue of an order in this action, demanded said property of defendant, and received the same. As a counter-claim, defendant alleged that on or about September --, 1885, plaintiff employed him to take care of, and have charge of, said schooner, for one year, at an agreed price of $50 per month and board; that, in pursuance thereof, defendant took care of, and had charge and possession of, said schooner from September --, 1885, until September 8, 1886, when said property was demanded by and surrendered to said sheriff, as before stated; that defendant never held or claimed to hold possession of said property except as a faithful agent and employe of plaintiff; that defendant's possession of said property was always the possession of plaintiff, and that defendant was at all times ready and willing to surrender the same to plaintiff; that plaintiff had not, since September, 1885, furnished defendant any board, and that defendant had been compelled to furnish the same, which was of the reasonable value of $22.50 per month; that plaintiff had not paid said agreed wages of $50 per month, or any part thereof. Defendant demanded judgment for $860, and costs. At the trial, defendant was permitted to amend his answer by inserting an allegation that his services and board were reasonably worth $72.50 per month during that time. Plaintiff recovered judgment, upon the pleadings, for the possession of all the property named in the complaint, and defendant had judgment for $473.86 for taking care of the property from December 1, 1885, to June 16, 1886, ($72.50 per month,) and his costs, taxed at $99.55. Subsequently, in overruling plaintiff's motion for a new trial, and by consent of defendant, the court modified the judgment by allowing plaintiff's costs up to the time of trial, taxed at $37.75, and ordering the same to be deducted from the costs taxed in favor of defendant. This appeal is taken from the judgment, and from an order overruling plaintiff's motion for a new trial.

1. Plaintiff demurred to the answer on the ground that "said answer contains a misjoinder of causes of defense, in that it improperly sets up, by way of counter-claim and off-set to a simple action of replevin, a cause of action for work and labor of defendant for the plaintiff,--a matter wholly foreign to the subject-matter of this action." The court overruled the demurrer, and in so doing counsel for plaintiff claim it erred. The statute provides as follows: "The answer shall contain *** (2) a statement of any new matter or counter-claim constituting a defense, in ordinary and concise language. The counter-claim *** shall be one existing in favor of the defendant, and against the plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action: First, a cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action." Gen. St. §§ 3068, 3069. If, in the sense of the statute, defendant's cause of action--his claim for services in taking care of the property described in the complaint--arises out of the transaction set forth in the complaint as the foundation of plaintiff's claim, or if it is connected with the subject of this action, it is properly pleaded as a counter-claim; otherwise not. This statutory provision, which, in substance, has been enacted by many different states, has been a prolific source of judicial controversy. The language is obscure. At least, when applying it to different cases, courts have found it no easy task to ascertain just what was "the transaction set forth in the complaint as the foundation of plaintiff's claim;" and they have experienced even greater difficulty in determining whether, in a given case, the defendant's cause of action, set up as a counter-claim, was "connected with the subject of the action." Courts have differed as to what is the "transaction set forth in the complaint as the foundation of the plaintiff's claim," as well as to what is the "subject of the action." We shall not inquire whether, in this case, on demurrer, the word "transaction" should be restricted to the simple statement of the wrong complained of by plaintiff, as set forth in the complaint, --that is to say, the alleged wrongful taking and detention of the property described,--or whether it should be held to embrace also all the facts and circumstances out of which the injury complained of arose, as stated by defendant in his answer. But see Ritchie v. Hayward, 71 Mo. 562; Hamlin v. Tucker, 72 N.C. 503; Bernheimer v. Willis, 11 Hun, 17, 18; Bitting v. Thaxton, 72 N.C. 542; Walsh v. Hall, 66 N.C. 236; Wadley v. Davis, 63 Barb. 501; Bank v. Lee, 7 Abb. Pr. 391.

In the sense of the statute, is defendant's cause of action for labor performed by him in taking care of the property in question "connected with the subject of the action?" Mr. Pomeroy says: "In regard to what constitutes 'the subject of the action,' there is no agreement whatever in the judicial opinions. Some of them have treated it as identical with the 'cause of action,' which is plainly incorrect." Pom. Rem. § 775. The author admits that, in certain cases, the things themselves, the land or chattels, may be regarded as the subject of the action. Mr. Bliss says: "The statute further authorizes a counter-claim which arises out of a cause of action which is connected with the subject of the action. *** And, before we can understand the bearing of the provision, we must clearly appreciate what is meant by the phrase 'subject of the action."' Code Pl. § 373. He also says: "The blunders that have been committed in this connection have chiefly arisen from not distinguishing the subject of the action from the cause or from the object of the action, or from the facts which constitute it." Insurance Co. v. Chamberlin, 56 Iowa, 508, 8 N.W. 338, and 9 N.W. 386, was an action to cancel a policy of insurance. No other judgment was sought. By way of counter-claim, defendant set up a cause of action on the policy for loss of the property insured. Said the court: "The subject of an action is the thing or subject-matter to which the litigation pertains. *** In the case at bar the subject of the action very clearly was the policy which had been issued, and just as clearly the defendant's cause of action was connected with it, being based upon the loss against which the policy purported to provide indemnity." Manufacturing Co. v. Hall, 61 N.Y. 227, was an action to restrain defendant from using an alleged trade-mark "Number 10," on the ground that it was a part of plaintiff's trade-mark. It does not appear that plaintiff sought to recover damages. Defendant admitted that he used the words "Number 10" in his business, but alleged that it was a part of his own trade-mark; that plaintiff had fraudulently used it; and he asked, by way of counter-claim, that plaintiff be enjoined from using the expression in his business. The court held that the subject of the action was the expression "Number 10," and that defendant might set up as a counter-claim his right to the same expression, and ask that the plaintiff be restrained, and pay damages for past injuries, because the same was connected with the subject of the action. Carpenter v. Insurance Co., 22 Hun, 52, was an action to recover damages for the conversion of wood. The defendant alleged as a counter-claim that it held a mortgage on certain...