Holt v. Van Eps , 1 Dakota 206 ( 1875 )

SHANNON, C. J.

— The defendant is the appellant. This is ah action to recover the'possession of personal property under chapter II, title VII, part II of the code of 'civil- procedures' commonly termed replevin. The plaintiff, at the'time'of -is-’ suing the summons, made the requisite affidavit, claiming the-immediate'delivery of the property. In it he avers that he is-now the owner and entitled to the immediate possession of o-ne noté and mortgage from William Holt to himself for $200, at ten per cent, interest, dated January 1, 1874, of the value of' $224; one note given by Pi Raymond-to him, for $255, dated' Jan. 17, 1874, and due Jan. 17, 1875, bearing, interest at the-rate of terf-per cent., and of the value of $285.45'; a final receiver’s receipt issued to him for certain land, fully described, of the value of $200; one note from'C. V, Borth to him, -of the" value of $54.60; one pass book containing accounts of sheriff’s fees due him, of the value of $50; a Minnehaha county war-' rant,-No. 13, of the year 1874, of the value of $20; a Minnehaha county warrant, No. 97, of the year 1873, of the value of $30; and a warrant of Lincoln county, D. T-i worth $55. The affidavit further shows that said property is wrongfully detained by the defendant, sets forth the alleged cause of the detention,asserts that it has not been taken for a tax, assessment or fine, pursuant to a statute, or seized under an execution or attachment against the property of the plaintiff, and concludes-by stating the actual value to be $919.05. The affidavit was regularly indorsed (under section 161) and delivered to the sheriff, who made return that after due and diligent search, he was unable to find the property.

The amended complaint, like the affidavit, alleges the ownership to be in the plaintiff. It declares that on the 9th day of January, of 1875 (the day of the alleged wrongful taking) the plaintiff was the owner and lawfully possessed Of the said property, and that it was then and ever since has been his ‘property. It concludes with the usual demand for judgment against the defendant for the recovery of the possession of the property, or for the sum of nine hundred and nineteen dollars and five cents, the value thereof, in case a delivery cannot be had, together with two hundred dollars damages and costs.

The answer, controverting the material allegations in the complaint, and raising the issues of fact to be tried by the jury, is as follows: First, it .admits that the two Minnehaha county warrants were given to the defendant by the plaintiff, and impliedly, of course, that the defendant has them, and detains them; but it alleges that they were given to the defendant as collateral security, to secure a portion of an indebtedness from the plaintiff to the defendant, which indebtedness has not been paid. Here arises a first issue, as to a small portion of the property. Secondly, as to the residue of the property claimed, and upon the direct and material question of its ownership, the defendant answering, says, “ that “ in regard to the plaintiff being the owner of the other goods “ and chattels, the defendant has not sufficient knowledge or “ information thereof to form a belief.” This, under our statute (section 102 of Code of Civil Procedure) is equivalent to a denial of ownership, or property, in the plaintiff, as to the other property; and it raised a material issue to be passed upop by the jury. Thirdly, the answer further denies that, as to the other property, the defendant has ever had it in his possession — that he has ever taken or detained it — that the plaintiff ever demanded it from him, and. finally denies each and every other material allegation in the complaint.

The issues of fact thus arising in this action, having-been duly brought on for trial before a jury, the following verdict was rendered, to-wit: “ We, the jury, find that the plaintiff is entitled to the possession of the property, and find its value to be $650, and assess his damages to be $75.”

There was a motion on the part of the defendant, that the verdict be set aside, for reason of the admission of improper testimony, and that it is against the evidence; which motion having been denied, judgment was entered that the plaintiff recover of the defendant the possession of the personal property described in the complaint, or $650, in case a delivery of said property cannot be had; and also that he recover seventy-five dollars damages, together with $8.38 costs. The appeal is from the order denying the motion for a new trial, and from the judgment of the District Court.

In the course of the trial below, the plaintiff having been on the witness-stand and under cross-examination, was asked the following question: “What is the fair market value of “ those notes payable to your order, without your indorse“ment, in the market at Sioux Falls, at the time this suit “ was commenced?” To this question the plaintiff’s counsel objected, and the objection was sustained by the court; to which ruling the defendant’s counsel duly excepted, and this is the first assignment of error.

Before our statute on the subject, in actions of Trover, or for the wrongful conversion of notes, the rule was well understood to be that the amount appearing to be unpaid upon the note, of principal and interest at the time of the conversion, and the interest upon that aggregate from thence to the ttial, was prima fade the measure of damages. (See Decker v. Matthews, 12 N. Y., 313; 7 Porter (Ala.) 466; Mercer v. Jones, 3 Camp., 477; Evans v. Kymer, 1 Barn, and Adol., 528; Allen v. Swydam, 20 Wend., 321, 355.) In 2 Greenleaf on Evidence, section 276, it is said that in Trover, “ where the subject is a written security, the damages are usually assessed to the amount of the principal and interest due upon it.” (See also ibid, § 649.)

The defendant had the right to show in reduction, the fact of payment in whole or in part, the inability of the makers to pay wholly-or partially, a release of the makers from their undertaking, th0 invalidity'of the note, or other matter which would legitimately affect or diminish its value. (See Kennedy v. Strong, 14 J. R., 128; Cortleyon v. Lansing, 2 Caines Cas., 199, 215.)

It is not in accord with common observation, that always the value of a. note is the amount at which it proclaims itself. Yet it is often, so; perhaps more often than otherwise. So, as the rulé o.f damages should be fixed and uniform, the current of the dieta of learned judge’s, from earlier to later times, was to allow the amount for which the note reads to be taken as its prima facie value; but to let the defendant be at liberty to show that which affected it. and reduced its value. And formerly, in the action of replevin, there were contingencies which would force the same issue — the value of the note. (Ingals v. Lord, 1 Cowen, 240; Tilden v. Brown, 14 Vermont, 164; 10 M. & W., 576.)

Accordingly our Civil Code, section 1875, properly pre--scribes that “ for the purpose of estimating damages, .'the value of a thing in action is presumed to be equal to that of the property to which it entitles its owner.” The question-nil-this case was not, therefore, the market value of the notes: at Sioux Falls, or other place, at the time the suit was commenced. The legal presumption is that they were worth, the., amount of principal and interest indicated on their face: and it was incumbent on the defendant to rebut that legal presumption in some of the modes, above, recognized and well established. There was, consequently,.no. error in the ruling of the court, upon this point. ...

The plaintiff having rested his cáse, defendant’s counsel' moved for a nonsuit, “ on the ground that the property-came peaceably into defendant’s possession, and no demand had. ever been made for the same;” which motion was denied'by the court, and defendant duly excepted; and this forms the second assignment of error.

Upon every principle, the nonsuit was properly refused; but especially upon tlie ground that a peremptory nonsuit cannot, in this Territory, be ordered against the will of the plaintiff. Marshall, C. J., in the case of Elmore v. Gryme, 1 Peters, 469, remarked, “that the court has had the case under consideration, and is of opinion that the Circuit Court had no authority to order a peremptory nonsuit, against the will of the plaintiff. He had a right by law to a trial by jury, and to have had the case submitted to them. He might agree to a nonsuit, but if he did not so choose, the court could not compel him to submit to it.”

In the case of Dewolf v. Rabaud, also in 1 Peters, 476, Mr. Justice Story, in delivering the opiriion of the court, said, that “ after the evidence for the plaintiff was. closed, the defendant moved for a nonsuit, which motion was overruled. This refusal, certainly, constitutes no ground for reversal in this court. • A nonsuit may not be ordered by the court npon the application of the defendant, and cannot, as we have had occasion to decide at the present term, be ordered, in any case, without the consent and acquiescence of the plaintiff.” And in Crane v. The Lessee of Morris, 6 Peters, 598, the same doctrine is reiterated, and declared not open for controversy. ^* (See Hyde v. Barker, 1 Pinney, 305; Baxter v. Payne, ibid, 501.)

As to the question of damages, the Civil Code, section 1832, provides for actual or compensatory damages to every person who suffers detriment from the unlawful act or omission of another; and such damages may be awarded, in any judicial proceeding, for detriment resulting after the commencement of the action, or certain to result in the future. The damages referred to, in an action to recover the possession of personal property, in section 228 of the Code of Civil Procedure, are actual damages, to wit: for the detention. But this later enactment does not abrogate section 1839 of the Civil Code, (the earlier law) which declares that,l in any action for the breach of an obligation not arising from contract, where the defendant has been guilty of oppression, fraud or malice, actual or presumed, the jury, in addition to the actual damages, may give damages lor the sake of example, and by way of punishing the defendant.”

There was, then, no error in the course of the trial in the District Court. But here, in this court, we have been confronted by an objection, unheard of in any stage of the proceedings below, that it is patent the verdict is so insufficient that no judgment could be rendered upon it.

In Patterson v. United States, 2 Wheat., 222, the Supreme Cotirt laid down the principle, that “ a verdict is bad, if it varies from the issue in a substantial matter, or if it find only a part of that which is in issue. The reason of the rule is obvious; it results from the nature and the end of the pleading. Whether the jury find a general or a special verdict, it is their duty to decide the very point in issue; and although the court in which the cause is tried may give form to a general finding, so as to make it harmonize with the issue, yet if it appears to that court, or to the appellate court, that the finding is different from the issue, or is confined to a part only of the matter in issue, no judgment can be rendered upon the verdict.” This doctrine was again enunciated by that court, in Downey v. Hicks, 14 H., 246.

A verdict which finds but part of the issue and says nothing as to the rest, is insufficient because the jury have not tried the whole issue. A special verdict which does not find the facts, but only the evidence of them, is imperfect, and no judgment can be rendered thereon, and a venire de now must be awarded. (Prentice v. Zane's Admr., 8 How., 661; Barnes v. Williams, 11 Wheat., 416.)

A special verdict is set out in 6 Cranch, 268, Ches. Ins. Co. v. Stark; and Marshall, C. J., stating that a certain'fact was found defectively, for that reason directed a new trial. The court can render no judgment on an imperfect verdict, or case stated. (Graham v. Bayne, 18 How., 60; Norris v. Jackson, 9 Wall., 125; 1 Wall., 99.)

In the case before us, the complaint alleges property and right of possession in the plaintiff; the answer traverses directly these allegations. The fact of absolute ownership is maintained by one party and controverted by the other, and the issue thus formed was a material one. For by oar statute, where a party claims a delivery of personal property, he must make affidavit to one of two things — either, first, that he is the owner of the property; or, secondly, that'lie is lawfully entitled to the possession thereof by virtue of a special property therein, the facts in respect to which he shall set forth.

Moreover, the plaintiff, in the complaint itself, avers this absolute ownership, which is denied. In an action for the recovery of specific property, if the property have not been delivered to the plaintiff, as in this case, and the jury desire to render a verdict for the plaintiff, they should say — first, that they find for the plaintiff, or, what is better, that they find a verdict, upon all the issues, of fact, for the plaintiff; and then, secondly, they must proceed in addition to do what our law enjoins on them, to-wit: “the jury shall assess the value of the property * * * and may at the same time assess the damages * * * which the prevailing party has sustained by reason of the detention or taking, and withholding such property.” (Code Civ. Pro., 214.)

The following is in New York, the recognized form of a verdict for the plaintiff in an action for chattels, (replevin) to-wit: “ This action being brought to trial before a jury, they find a verdict, upon all the issues of fact, for the plaintiff, and assess the value of the property at.dollars, and the plaintiff’s damages by reason of the detention of the property at.dollars.” (2 Abbott’s N. Y. Forms, 462.)

In 2 Greenleaf on Evidence, section 561, it is said that where the issue raises the question of title, the plaintiff must prove, that at the time of the caption he had the general or a special property in the goods taken, and the right of immediate and exclusive possession.” “ If the general issue is simply non cepit, that admits the plaintiff’s title.” (§ 562.) But in section 563, “ if the defendant, besides the plea of non cepit, also pleads property, either in himself or a stranger, and traverses the right of the plaintiff, the material inquiry will be as to the property of the plaintiff, which the plaintiff must be prepared to prove, the onus probandi of this issue being on him; for if the former issue is found for him, but the latter is either not found at all, or is found for the defendant, the plaintiff cannot have judgment.”

In Bemus v. Beckman, 3 Wend., 667, it was held that if the jury summoned to try such an issue, merely find that the property is not in the defendant, or that it is in a stranger, without finding whether it is or is not in the plaintiff, the verdict will be immaterial, and a judgment on it erroneous. (See 1 Smith’s Leading Cases, 405.)

Also in 3 Phillip’s on Evidence, 412, note 1076, it is stated that where, besides the plea of non cepit, defendant pleads property in a third person, the jury must pass upon both issues, otherwise judgment will be reversed. The true character, therefore, of the pleas in replevin, commonly described as pleas of property, in the defendant or in a stranger, is, that of a broad traverse of the property of the plaintiff. (See Boynton v. Page, 13 Wend., 425; 12 Wend., 161; 1 Black, (U. S.) 96; Couch v. Martin, 3 Blackford, 256; Huff v. Gilbert, 4 Blackford, 19; 25 Ark., 183.)

But the case of Child, et al. v. Child, in 13 Wis., 17, furnishes a parallel to the one before us. There it was replevin, and the verdict was that the plaintiff was entitled to the possession of the property described in the complaint, and likewise found the value thereof, and assessed the damages for the detention. There, too, the complaint alleged that the plaintiff was the owner of the property which the defendant unlawfully detained, and upon the general plea of “ not guilty,” the jury found as above, not passing upon the question of title to the property. It was held that the verdict was defective in substance, and a new trial was awarded. Cole, J., in delivering the opinion, said — “ when the plaintiff alleges title in himself, that becomes an issue when traversed, and is to be disposed of like any other issue. And the jury might as well ignore the right to the possession, or the wrongful taking and detention, as the title to the property, when the latter fact is in issue.”

In Warner v. Hunt, 30 Wis., 200, the above view of the law is re-affirmed, declaring the reasonableness and necessity of the rule requiring the verdict to dispose of the question of title, when that is put in issue by the pleadings. (See, also, 20 Wis., 1, Booth, et al. v. Ableman, et al.)

The remaining question is this: the judgment being unauthorized, where all the material issues are not disposed of, can the error be urged for the first time in the Supreme Court? Upon principle and authority, we are of opinion that it can. This point came up in Garland v. Davis, 4 How., 143, a defect having been discovered in the pleadings and verdict, which was not noticed in the court below, nor even suggested by counsel in the Supreme Court of the United States. That court seems to have had no doubt about their power to consider the defect and to reverse the judgment.

In Bennett v. Butterworth, 11 H., 674, Taney, C. J., said— this is “ a suit to try a legal title.” The plaintiff “claimed in- his petition a legal title to the negroes, which the defendant denies,” etc. Á jury was sworn who found in the following words: “ We, the jury, find for the plaintiff twelve,hun-dren dollars the value of the four negro slaves in suit, with six and a quarter cents damages.”

“ Now,” said the Chief Justice, “ if anything is settled in proceedings at law when a jury is impanelled to try the facts, it is, that the verdict must find the matter in issue between the parties, and the judgment of the court must conform to and follow the verdict. But here the matter in issue was the property in these negroes, and the verdict does not find that they are the property of the plaintiff, or the defendant. * * It ought, therefore, to have been set aside upon the motion of either party, as no judgment could lawfully be entered upon it. * * * The judgment is evidently erroneous, and must be reversed. And as these errors are patent upon the record, they are open to- revision here, without any motion in arrest of judgment, or exception taken in the district court.”

As, therefore, in this case the verdict is defective in substance, the judgment of the District Court is reversed, and a new trial awarded.