Unfried v. Libert

• Decision Date: 10 April 1913
• Citation: 23 Idaho 603,131 P. 660
• Parties: FRED UNFRIED and SYLVIA UNFRIED, Respondents, v. WILLIAM A. LIBERT, Appellant
• Court: Idaho Supreme Court

131 P. 660

23 Idaho 603

FRED UNFRIED and SYLVIA UNFRIED, Respondents, v. WILLIAM A. LIBERT, Appellant

Supreme Court of Idaho

April 10, 1913

DAMAGES-AMENDED COMPLAINT-NEW CAUSE OF ACTION-SHEEP-WRONGFUL POSSESSION OF-STARE DECISIS-THEORY OF THE CASE-VERDICT-SUFFICIENCY OF EVIDENCE-AMOUNT OF JUDGMENT-INSTRUCTIONS.

1. On the former appeal (see 20 Idaho 708, 730, 119 P. 885), it was held that no punitive or exemplary damages could be recovered in this case, and the cause was remanded for a new trial as to the actual damages sustained by the plaintiffs and the value of the wool clip of 1907.

2. Held, that the appellant's possession of said sheep was wrongful, and that he was responsible to the plaintiffs for the market value of such sheep at the time they were taken.

3. Held, that the issues made by the amended complaint after the reversal of this case on the former appeal were identical with the said two causes of action as alleged in the original complaint, and that the former decision in this case was the law of the case on a new trial thereof, as the causes of action arose out of the same transaction, involving the same wrongful trespass.

4. On the former appeal the right of the plaintiffs to maintain this action was sustained, aside from punitive damages.

5. Held, that the evidence is sufficient to sustain the verdict.

6. Held, that the instructions given by the court stated the law of the case as applied to the evidence.

APPEAL from the District Court of the Second Judicial District for Nez Perce County. Hon. Edgar C. Steele, Judge.

Action to recover for the wrongful taking of personal property consisting of sheep and wool. Judgment for plaintiffs. Affirmed.

Judgment affirmed, with costs in favor of the respondents. Petition for rehearing denied.

Charles L. McDonald and Ben F. Tweedy, for Appellant.

"A mortgagee in possession of mortgaged property is entitled to be credited with all reasonable and actual expenses in caring for it." (7 Cyc. 91, 92.)

"If the respondents are entitled to anything, they can recover in an accounting action the net proceeds only." (Inland Trading Co. v. Edgecombe, 57 Wash. 257, 106 P. 768.)

"It is well settled that the amount of the recovery cannot exceed that claimed in the complaint." (13 Cyc. 181.)

I. N Smith, James L. Harn and Clay McNamee, for Respondents.

The law announced by this court on the former appeal is the law of the case. (Gerber v. Nampa & M. Irr. Dist., 19 Idaho 765, 116 P. 104; Steve v. Bonners Ferry Lumber Co., 13 Idaho 384, 92 P. 363; Lindsey v. People, 1 Idaho 438; Palmer v. Utah Northern, 2 Idaho 382, (350), 16 P. 553.)

An appellant cannot complain of erroneous instructions favorable to himself. (Knollin v. Jones, 7 Idaho 466, 63 P 638.)

Where a defendant pleads over, or defendant's evidence supplies any omission or defect of plaintiff's evidence, and all the evidence together is sufficient to sustain the verdict of the jury, such verdict will be sustained. (McClain v. Lewiston Interstate Fair & R. Assn., 17 Idaho 63, 104 P. 1015, 20 Ann. Cas. 60, 25 L. R. A., N. S., 691; Thickey v. Clark, 50 Ore. 516, 93 P. 457; Vanyi v. Portland Flouring-Mills Co. (Or.), 128 P. 830.)

The former decision of this court, as well as the supreme court of Washington, shows that Libert was wrongfully in possession of all property which the receiver took. He was therefore chargeable with the greatest amount of property taken, at the highest market price. (Unfried v. Libert, 20 Idaho 725, 119 P. 885; Livesly v. Krebs Hop. Co., 57 Ore. 352, 97 P. 718, 107 P. 460, 112 P. 1; Hamer v. Hathaway, 33 Cal. 117; Learock v. Paxson, 208 Pa. 602, 57 A. 1097; Kid v. Mitchell, 1 Nott & McCord (S. C.), 334, 9 Am. Dec. 702; Stephenson v. Price, 30 Tex. 715; Webster v. Moe, 35 Wis. 75; Weymouth v. Chicago etc. Ry. Co. , 17 Wis. 550, 84 Am. Dec. 763; Douglas v. Kraft, 9 Cal. 562.)

This charge is made without deduction for expenses, which Libert claims to have made in caring for the sheep, because he was wrongfully in possession. (Unfried v. Libert, 20 Idaho 708 (727), 119 P. 885; Kellogg v. Malick, 125 Wis. 239, 103 N.W. 1116 (1120-1142), 4 Ann. Cas. 893, collating cases.)

SULLIVAN, J. Ailshie, C. J., and Stewart, J., concur.

OPINION

SULLIVAN, J.

This is an appeal by the defendant, who is appellant here, from a judgment based on the verdict of a jury which awarded to the respondents damages in the sum of $ 5,513, alleged to have been sustained by reason of a certain sheep transaction. This case was once before this court (see 20 Idaho 708, 119 P. 885), and on petition for rehearing (20 Idaho at 730) this court held that no punitive or exemplary damages could be recovered, and also that there could be no recovery for the wool clip in question for 1906, and remanded the case for a new trial as to the actual damages, if any, sustained by the plaintiffs. The facts are very fully stated in the former opinion and will not be repeated here.

An amended complaint was filed after the case was remanded, wherein and whereby the plaintiffs claimed damages in the sum of $ 6,153, with interest.

The action is based on three causes of action, and on motion the second cause was stricken from the complaint and the cause was tried on the first and third causes of action. From a judgment in favor of the plaintiff and from an order denying a new trial, this appeal was taken.

Counsel for appellant contend that during the time appellant held said sheep he had possession of them for the purpose of foreclosing his mortgage. The facts show that appellant's possession of said sheep was wrongful, taken, in the first place, under a void order purporting to appoint a receiver, which receiver was thereafter removed, and notwithstanding his removal the appellant still unlawfully and wrongfully kept possession of the sheep.

This court held on the former appeal (see 20 Idaho 708, 729, 119 P. 885) as follows:

"But where, as in this case, the facts show that the appellant wrongfully took possession of the mortgaged property and retained the same and converted such property to his own use or permitted it to be lost or injured or destroyed, he is responsible to the owner for the market value of such property at the time the same was taken."

The supreme court of Washington also held that the possession under the void order appointing said receiver was wrongful. (See Libert v. Unfried, 47 Wash. 182, 91 P. 774.) Notwithstanding the fact that the supreme court of Idaho as well as the supreme court of Washington held that Libert's possession was wrongful and unlawful, counsel for a...