Michael v. Zehm

• Decision Date: 01 December 1953
• Docket Number: No. 7996,7996
• Citation: 74 Idaho 442,263 P.2d 990
• Parties: MICHAEL v. ZEHM.
• Court: Idaho Supreme Court

Page 990

263 P.2d 990

74 Idaho 442

MICHAEL v. ZEHM.

No. 7996.

Supreme Court of Idaho.

Dec. 1, 1953.

Cope R. Gale, St. Maries, McNaughton & Sanderson, Coeur d'Alene, Paul C. Keeton, Lewiston, for appellant.

Robert McFadden and Richard L. McFadden, Plummer, for respondent.

THOMAS, Justice.

Michael, appellant, hereinafter referred to as plaintiff, brought an action against Zehm, respondent, hereinafter referred to as defendant, in claim and delivery to recover possession of a tractor and damages for wrongfully withholding from and depriving him of the possession thereof.

On March 2, 1950, plaintiff purchased one tractor from defendant under an oral conditional sales contract under the terms of which plaintiff made a down payment of $500 and agreed to pay the balance of $900 on or before the last day of May, 1950; plaintiff also delivered to defendant a truck for the purpose of having defendant sell it if possible and apply the proceeds of the sale as a credit upon the purchase price of the tractor. No further payments in addition to the $500 having been made upon the contract as provided therein or at all, defendant on or about October 23, 1950, repossessed the tractor and took it to Worley, Kootenai County, Idaho.

A criminal complaint was filed against defendant charging him with grand larceny. This action apparently was dismissed when defendant, upon request of the sheriff of Benewah County, returned the tractor to Plummer, Benewah County, and placed it in the custody of said sheriff.

On or about October 30, 1950, plaintiff commenced an action in claim and delivery. Defendant filed an answer and cross-complaint alleging ownership of the tractor and seeking possession thereof and damages for its retention by plaintiff. Plaintiff, in answer to the cross-complaint, alleged that on the 27th of November, 1950, defendant filed an undertaking with the sheriff for the return of the tractor and the same was turned over to him and that he has had the right to the possession and use thereof from that time to the time the answer was filed on December 10, 1952.

Upon issues so joined the matter was tried before the court sitting without a jury.

At the conclusion of the trial the court made findings and conclusions and entered judgment for defendant on his cross-complaint, adjudging him to be the owner of the tractor and awarding him damages in the sum of $2000 for being wrongfully deprived of the possession thereof. The appeal is from this judgment.

Plaintiff makes three assignments of error. The first two assignments will be considered together. In the first assignment of error it is asserted that the findings and the judgment are erroneous for the reason the same are contrary to law and not supported by the evidence. The second assignment sets forth that certain findings, designated by the numbers, are not supported by the evidence and are contrary thereto. Both assignments are in general terms and do not in any respect point out wherein any of the findings or the judgment are erroneous, contrary to law, or not supported by the evidence. The brief contains neither citation of authority nor argument in support of either of these assignments of error.

This court has with consistency held that an assignment of error to the effect that the evidence is insufficient to support the findings and the judgment will not be considered on appeal where there is no specification of the particulars wherein the evidence is insufficient in these respects. Merrill v. Fremont Abstract Co., 39 Idaho 238, 227 P. 34; this is especially so where there are no authorities cited nor argument upon the question set forth in the brief. Hayward v. Yost, 72 Idaho 415, 242 P.2d 971; Bolen v. Baker, 69 Idaho 93, 203 P.2d 376.

There remains but one further assignment of error which challenges the sufficiency of the evidence to support a finding of damages in the sum of $2000 or in any sum or at all. All the authorities set forth in the brief and all the argument in connection therewith are confined exclusively to this assignment.

Generally the successful party may recover such damages in claim and delivery action as will compensate him for the loss he has sustained, if any, by being wrongfully deprived of the possession of the property. Sections 8-304 and 8-306, I.C. 77 C.J.S., Replevin, § 262, page 189; however in such action the plaintiff need not post a bond and require the sheriff to take the property in possession. Section 8-301, I.C.; 77 C.J.S., Replevin, § 194, page 144 and § 104, pages 71-72.

If defendant is entitled to damages it must be based upon and supported by evidnce, not only that he was entitled to possession but also that plaintiff has deprived evidence, not only that he was entitled to

With reference to possession of the tractor the evidence discloses the following: the sale and delivery of the tractor to plaintiff on or about March 2, 1950; its repossession by defendant on or about October 23, 1950, at which time defendant took it to Worley, Idaho; that soon thereafter, the time not being fixed with certainty, defendant was charged with grand larceny of the tractor; he testified with respect to this matter that, upon request of the sheriff, he returned the tractor to Plummer, Idaho, and placed it in the custody of the sheriff; that it has been at the pole yard in Plummer ever since he placed it in the custody of the sheriff; there is no testimony in the record fixing the time it was so placed in the sheriff's custody but apparently it was sometime in November of that year; in the meantime, and on or about October 30, 1950, plaintiff filed his action in claim and delivery; the evidence does not disclose that plaintiff...