Perrin v. Hughes ( 1922 )

ROSS, C. J.

(After Stating the Pacts as Above.) — • The appellees offered no evidence in support of the allegations of damages contained in their cross-complaint except those enumerated in the itemized statement. No evidence was introduced in support of the allegation that the cows had appreciated in value $30 per head and calves $20 per head, or that the 150 calves of increase were of the value of $20 per head. These items of damage alleged were abandoned, as also was the item of $4,000 for removing sheep from range. The sums in the itemized statement aggregated $6,023.51. It was admitted that an item of $18 should be deducted from this total, as also an item of $85 for hides sold by defendants. Deducting these two items, the difference is the exact amount of the verdict and judgment, $5,920.51. The court instructed the jury that if they found from the evidence the defendants had proved the contract as alleged in their cross-complaint, and that the plaintiff retook the-cattle from defendants on November 1, 1918, and withheld them, such act would render “plaintiff liable in damages to defendants for such sum as you may consider will reasonably and fairly compensate the defendants for any service you may find them to have rendered and for any expenditures you may find them to have made in connection with the handling and running of said cattle, not exceeding, however, the sum of $6,005.51, and from any allowance of damages to defendants there should be deducted the sum of $85 for certain hides from these cattle of which defendants received the proceeds.” The giving of this instruction is complained of as error, because it is said the evidence does not support it. It is the contention of appellant that the appellees’ cross-complaint was drawn upon the theory that the appellant was liable for only one-half of the expenses, of running and caring for cattle during the time the appellees had possession of them, and that the evidence was introduced upon that theory. An inspection of the allegations of damages in the cross-complaint verifies this contention. The appellees therein charged themselves with one-half of the expenditures itemized as $6,023.51. Whether the appellees, under proper pleadings, would have been entitled to the total of their expenditures or not is not the question. They have not claimed all of the expenditures in caring for cattle during the time they held them, but in direct language, and presumably upon the theory that the plaintiff and defendants were alike the owners of an equal undivided interest in the cattle, charged the appellant with one-half of the overhead charges, and themselves with the other one-half. The appellees then, at most, were entitled to a verdict for one-half of $6,023.51, less the items above named, or $2,960.25. The verdict and judgment is therefore clearly excessive.

It is not necessary for us to consider whether the other assignments are well taken or not. If other errors were committed, we will assume that they will not to he repeated in a retrial.

Judgment is reversed and cause remanded, with directions that appellant be granted a new trial.

McALISTEE, and FLANIGAN, JJ., concur.