Reed v. Sibley., 3480.

• Decision Date: 24 February 1931
• Docket Number: No. 3480.,3480.
• Citation: 296 P. 572,35 N.M. 307
• Parties: REEDv.SIBLEY.
• Court: New Mexico Supreme Court

35 N.M. 307

296 P. 572

REED

v.SIBLEY.

No. 3480.

Supreme Court of New Mexico.

Feb. 24, 1931.

Syllabus by the Court.

Error in giving and refusal of instructions touching replevin issues was harmless as to plaintiff, where jury returned verdict in defendant's favor for unpaid portion of purchase price.

Where in a replevin suit the defendant, in addition to a general denial, by cross-action claims judgment for unpaid portion of purchase price of replevined chattels, and plaintiff joins issue on this claim, a verdict in defendant's favor for unpaid portion of purchase price renders unavailing to plaintiff and harmless the error, if any, in the giving and refusal of instructions touching the replevin issues, since such a verdict presupposes in plaintiff ownership and right to possession of chattels in question.

Plaintiff, who permitted defendant to plead cross-action for balance of purchase price of chattels sought to be replevined and joined issue thereon, could not complain that replevin issues were not determined by verdict awarding defendant balance of price.

Where the plaintiff in replevin, without objection, permits the defendant to plead both a general denial and a cross-action claiming judgment for unpaid portion of the purchase price of the chattels sought to be replevined, and joins issue with defendant on this claim, such plaintiff will not be heard to complain after verdict awarding defendant balance of purchase price, that the replevin issues also were not determined by the verdict. And such a verdict supports money judgment against the plaintiff for the amount of the award.

Appeal from District Court, Grant County; Dunifon, Judge.

Action by Frank Reed against H. D. Sibley, in which defendant filed a cross-action. Judgment for defendant, and plaintiff appeals.

Affirmed, and cause remanded.

Error in giving instructions touching replevin issues was harmless as to plaintiff where jury returned verdict in defendant's favor for unpaid portion of purchase price.

Walton & Wiley, of Silver City, for appellant.

A. W. Marshall, of Deming, and Geo. W. Hay, of Silver City, for appellee.

SADLER, J.

This is a suit in replevin, instituted by appellant to recover the possession of twenty-three head of cattle. The complaint is in usual form. The cattle were taken from appellee under the writ and delivered into the possession of appellant.

The appellee's answer was in two parts. The first part consisted of either specific or general denials of all of the allegations of the complaint, except as to the value of the cattle, as alleged in the complaint, which was admitted. The prayer to this portion of the answer was for return of the cattle and for costs.

The remaining portions of the answer were designated “further answer and separate action,” and, in substance, amounted to a waiver of appellee's claim of title or right to return of the cattle. It alleged a balance due on the purchase price of said cattle in the sum of $525, and prayed judgment for a sum which included this amount. The appellant's reply joined issue with appellee on the matters set up in the further answer and separate action, including the balance of purchase price claimed.

The cause was tried to a jury, under instructions submitted by the court. The court gave the jury two forms of verdict; one finding the issues for the plaintiff and assessing his damages at a sum to be fixed by the jury, and the other finding the issues for the defendant and likewise assessing his damages at a sum to be fixed by the jury. The jury returned into court the following verdict, to wit: “We, the Jury, find the issues for the defendant, and against the plaintiff, and assess the defendant's damages at five hundred and twenty-five dollars ($525.00). We understand that by this verdict, we are awarding the defendant, H. D. Sibley, the balance of purchase price due on the cattle, five hundred and twenty-five dollars ($525.00), and no more.”

Thereupon, and on the day following the return of said verdict by the jury, the court entered a final judgment in favor of the appellee against the appellant, being a money judgment for the sum of $525, the amount specified in the verdict, plus costs.

The appellant has prosecuted an appeal from the judgment rendered against him, and relies upon three points for reversal, to wit:

(1) That the judgment is not supported by the verdict.

(2) That the judgment is contrary to the verdict.

(3) That the trial court erred in refusing to instruct when title and/or the right to possession of personal property passes from a vendor to a vendee.

[1] The appellant complains of the court's action in the giving and refusal of instructions. The basis of his objections in this regard is that the jury was not adequately instructed on questions of title, right of possession, and other matters pertinent only to the issues raised by the complaint in replevin and the answer thereto. He must find justification for his contention in the belief that, had the jury been properly instructed, it would have resolved the replevin issues in his favor.

The jury's verdict, however, as we view it, presupposes title and right of possession to the cattle in question in appellant, for it awards appellee the balance of purchase price due on the cattle. So interpreting the verdict, we fail to see how appellant was injured, except possibly by permitting, without objection, the pleading of inconsistent defenses to his complaint in replevin. This is a matter which will be discussed in succeeding paragraphs of this opinion. The error, if any, in the court's ruling on instructions, was harmless.

[2] It is next urged that the judgment is not supported by the verdict, and that the judgment is contrary to the verdict. These two points relied upon for reversal really resolve themselves into one. If the suit in question be...