Schrandt v. Young
| Decision Date | 19 June 1901 |
| Docket Number | 9,585 |
| Citation | 86 N.W. 1085,62 Neb. 254 |
| Parties | C. A. SCHRANDT ET AL. v. W. E. YOUNG |
| Court | Nebraska Supreme Court |
ERROR from the district court for Sheridan county. Tried below before WESTOVER, J. Affirmed upon filing of remittitur.
Affirmed upon filing of remittitur.
Robert Lucas and Albert W. Crites, for plaintiffs in error.
W. W Wood and Stewart & Munger, contra.
POUND C. SEDGWICK and OLDHAM, CC., concur.
This is an action of replevin involving some 536 sheep taken by the plaintiffs from the possession of the defendant, who held them under a written contract of agistment whereby he was to receive one-half of the increase after making good all losses and one half of the wool-clip, by way of compensation. The contract was for a term of three years, but at the end of the first year the plaintiffs, claiming that the defendant had failed to comply with the terms of the contract as to care, feed and protection of the sheep, so that a number had been lost and the others damaged, demanded possession, and on refusal instituted this suit. Upon trial, the jury found the right of possession to be in the defendant, found that he had a special ownership and interest of the value of $ 239.80, and assessed his damages by reason of the detention of the property by the plaintiffs at $ 400. Judgment was rendered accordingly, and the plaintiffs prosecute error to review this judgment and the proceedings on which it is based.
The defendant, in his answer, after a general denial, set up in a further paragraph the written contract between the parties and a number of affirmative defenses based thereon, claimed a special interest or ownership by way of agister's lien for $ 292, the value of his agreed compensation up to the time the sheep were taken, and damages in the sum of $ 450, for the taking and detention, being the probable profit which would have accrued to him under the contract had it not been broken by plaintiffs' replevying the sheep. The plaintiffs moved the court to require the defendant to separately state and number the several defenses set up in this second paragraph, and error is assigned in that the trial court overruled such motion. We do not think that this ruling was either prejudicial or erroneous. The matters set up in the second paragraph were mere surplusage, as the defendant might have proved every available defense therein pleaded and recovered every item of damage properly allowable to him for the detention of the property under his general denial. School District v. Shoemaker, 5 Neb. 36. Obviously the more particular statement was not prejudicial. But counsel say there were matters pleaded which were not properly triable and damages claimed which were not recoverable, and that if separate statements had been required these might have been eliminated. Such course was not necessary. The whole of the second paragraph was superfluous and redundant. Plaintiffs' remedy was not by a motion for an order to separately state and number, but by motion to strike out. There was nothing to prevent their reaching any part or all of the paragraph in question without separate statements. Aultman, Miller & Co. v. Stichler, 21 Neb. 72, 31 N.W. 241. A more serious question arises, however, upon the rulings on evidence, instructions, and verdict as to these damages. All of the assignments of error upon these points may be considered together, as they present the same questions, namely: what is included in the damages for detention recoverable by a successful defendant in replevin; whether he can recover more than interest on the value, or alternatively the value of use of the property, and deterioration or depreciation between the date of taking and the trial; and whether any distinction with respect to the recovery of the value of use of the property must be made, dependent upon return or failure to return.
This court has heretofore remarked that the measure of damage in actions of replevin "has been the occasion of much controversy and diversity of opinion." Teel v. Miles, 51 Neb. 542, 71 N.W. 296. In the action of replevin originally no damages were recoverable by the defendant. The right to damages arises from the provisions of statutes, which differ considerably in the several states in essential particulars. Hence we must look primarily to the provisions of the statutes to ascertain the limits of such right. Section 191 of the Code of Civil Procedure says that when the jury find for the defendant they shall find whether he had the ownership or the right of possession only, and shall award him such damages as "they think right and proper," for which judgment shall be rendered. Section 191a provides that the judgment mentioned in the prior section shall be for the return of the property, or, if return can not be had, for the value of value of possession, "and for damages for withholding said property." In other words, the damages allowed are for the withholding or detention of the property, not all damages generally which may be connected with the subject in dispute or grow out of the relations of the several parties to each other or to the property. They must arise from, and be incident to, the contest over possession of the property; and unless they do so arise, are not recoverable merely because connected with the transaction by reason or virtue of which the plaintiff's alleged right of taking possession accrued. It is true that in Schars v. Barnd, 27 Neb. 94, 42 N.W. 906, a plaintiff who replevied a stock of goods from a sheriff was allowed to recover damages resulting from the closing of his store under the levy. But this was as part of his damages for the withholding of the stock after levy and until retaken in replevin. During that time, as a result of the withholding of the stock, the store remained closed, and such damages represented the value of the use of the stock to the plaintiff during the time it was withheld, which obviously might be more than the probable net income during the days the sheriff was in charge. That decision does not extend the statutory recovery of damages for the withholding or detention to other damages not connected with the detention of the property but depending upon the effect of the replevin proceedings upon collateral undertakings or obligations not immediately connected with the controversy over possession of the property. The replevin action is primarily to adjudicate the possession of the property. Other rights and claims must be determined, as a general rule, in other appropriate proceedings, even though closely connected with the controversy out of which the contest over possession arises. Gillespie v. Brown, 16 Neb. 457, 20 N.W. 632. For the same reasons, damages not connected with the respective rights of the parties to possession, such as injury to other property occasioned by the removal of that in controversy, are not recoverable. Dietrichs v. Lincoln & N. W. R. Co., 13 Neb. 43, 47, 13 N.W. 13; Jameson v. Kent, 42 Neb. 412, 60 N.W. 879.
What then, is the measure of damage for detention? Ordinarily it is interest upon the value of the property. Hooker v. Hammill, 7 Neb. 231; Hainer v. Lee, 12 Neb. 452, 11 N.W. 888; Dodge v. Runels, 20 Neb. 33, 28 N.W. 849. But where the use of the property is valuable, the value of the use may and often does considerably exceed the lawful rate of interest. In such case interest does not afford adequate compensation, and, accordingly, it is well settled that the value of the use, where use has a special value above and in excess of interest, is recoverable as damages for detention, and is the measure thereof, instead of interest. Boston Loan Co. v. Myers, 143 Mass. 446, 9 N.E. 805; Williams v. Wood, 61 Minn. 194, 63 N.W. 492; Nash v. Larson, 80 Minn. 458, 83 N.W. 451; Burt v. Burt, 41 Mich. 82, 1 N.W. 936; Shinn, Replevin, sec. 646. Another kind of damage which may properly be allowed to a defendant arises from change in the value or condition of the property while withheld from him. In this state the value of the property is fixed with reference to the time when it was taken under the writ. Heidiman-Benoist Saddlery Co. v. Schott, 59 Neb. 20, 80 N.W. 47. If the property is injured or deteriorates in value after it is taken, a return does not make the defendant whole, because he does not get it in the condition in which it was, and, in order to be fully restored to his former position, he ought to have the difference in value as damages. This is universally recognized, and such deterioration is considered a proper element of damage. Hooker v. Hammill, 7 Neb. 231; Shinn, Replevin, sec. 648. But such damages are allowed upon the theory that the defendant is getting back the property in a damaged or deteriorated condition, or that it is less valuable than when taken from him. If the property is not returned, and the defendant recovers its value at the time it was taken instead, he is fully compensated, and should not be awarded in addition damages for deterioration, meant only to make up deficiencies in the property as returned. Hence it is held properly that damages for deterioration are only recoverable where the property is returned, and may not be had, along with the value at the time of taking, in case no return is made. A difficulty arises in this state, however, in view of prior decisions of this court, to the effect that damages for detention generally, and not merely those assessed to cover deterioration and depreciation, may not be recovered except where there is a return, and that where there is no return interest is the sole measure of damage. Romberg v. Hughes, 18 Neb. 579, 26 N.W. 351; Hale v. Wigton, 20 Neb. 83, 94, 29 N.W. 177; Aultman, Miller & Co., v. Stichler, 21 Neb. 72, 79, 31 N.W. 241. In Romberg v....
To continue reading
Request your trial