Knickerbocker v. Hall , 3 Nev. 194 ( 1867 )

Opinion by

Lewis, J., Beatty, C. J.,

concurring.

This action was brought to recover the value of certain personal property alleged in the complaint to have been “ wrongfully and unlawfully converted ” by defendant to his own use and benefit. After this allegation of a tortious conversion, follows the averment that the defendant “ did then and thereby become indebted to the said plaintiff for the price and value of said property, to wit: in the sum of eight thousand three hundred and twenty-nine dollars and ninety-eight cents, (the alleged value of the chattel property) which said sum the said A. H. Hall then legally promised and agreed to pay to the plaintiff.” This pleading is decidedly novel in its form, and, as a complaint in assumpsit, is vitally defective. The tortious conversion is fully charged; and it is alleged that thereby, that is, by means of the trespass, the defendant became indebted and promised to pay. The only inference to be drawn from the language employed by the plaintiff is, that a promise to pay for the value of the property was implied by reason of the wrongful conversion by him. An express promise to pay a certain sum of money as damages for a tort previously committed, would doubtless create a contract upon which an action might be maintained, but most clearly the law will never presume a promise or agreement to pay from the-tort itself. (Carson River Lumbering Company v. Bassett et als., 2 Nev. 249, and cases there cited.)

Though the old rules of pleading have been much relaxed by codes of Procedure and Practice Acts, yet the substance of the old pleadings is still required, and it is as necessary under our system to maintain in the pleadings the distinction between actions arising from torts and those growing out of contracts, as it was at Common Law, for this reason if no other: that the Court may know whether a counter claim is or may be properly pleaded or not. Under our practice, a counter claim arising upon contract cannot be pleaded by a defendant to an action brought to recover damages for a trespass. Nor can unliquidated damages arising out of a tort beheaded as a counter claim in an action brought upon contract.

By the forty-seventh section of the Civil Practice Act it is provided that a counter claim must be—

“ First — A cause of action arising out of the transaction set forth in the complaint or answer, as the foundation of the plaintiff’s claim or defendant’s defense connected with the subject of the action.

“ Second — In an action arising upon contract, any other cause of action arising also upon contract and existing at the commencement of the action.”

Hence as the defense which the defendant is permitted to make may to some extent depend upon the character of action made out by the complaint, the plaintiff should be compelled to show clearly by his pleadings whether his action is based upon tort or contract. If he pleads a contract, he certainly ought not to be allowed to recover by the proof of a trespass, or of facts, from which there could be no presumption of a contract. If he were allowed to recover by proving a tort when he has pleaded a contract, the defendant might be deprived of most material rights; because notwithstanding he may have had a valid claim upon contract against the plaintiff, he could not properly plead it as 'a counter claim in an action brought against him to recover unliquidated damages. Facts should not therefore be so stated in a pleading as to render it uncertain whether the complainant’s action is upon contract or tort. Because, under our practice, the pleadings are to be liberally construed, with a view to substantial justice between the parties, it does not follow that the substantial rules of pleading can be disregarded and that every hotch-potch of inconsistent facts indorsed “ complaint,” or “ answer,” is to be deemed a sufficient pleading.

If the allegation of indebtedness and promise to pay could be treated as surplusage in the plaintiff’s pleading in this case, it would not even then perhaps be sufficient as a complaint in the nature of trover, which is probably the action that should have been brought. But as the defects in the complaint are possibly not of a character to be taken advantage of on appeal, we only refer to them for the purpose of suggesting an amendment before the cause is again tried.

Whatever may be the character of the action, whether it be in the nature of trover or assumpsit, the verdict of the jury is evidently informal and defective.

In all actions for the recovery of money, the jury should always find the amount which the successful party is entitled to recover. A mere finding for the plaintiff or defendant without assessing the sum to be recovered is not sufficient. In this case the jury returned the following as their verdict: “ The undersigned jurors in the above entitled cause find a verdict for the plaintiff, and assess the value of the property at six thousand three hundred and eight dollars.”

The general finding for the plaintiff was doubtless sufficient upon all the issues raised by the pleadings except the amount of money which he was entitled to recover. Instead of that the jury found the value of the property. So far as the damages to be recovered by the plaintiff are concerned, the .verdict is special. One fact is found which is indispensably necessary to be ascertained in assessing the damages in a case of this kind: that is the value of the property tortiously converted. Its value at the time of conversion is usually the least sum which the plaintiff is entitled to recover. But its value at any other time may be much more than he is entitled to recover. If there were no fluctuation in the 'value of personal property, a finding of its value upon such pleadings as those which are presented to us would perhaps be a sufficient assessment of the damages to be recovered, because the successful party would in such case be at least entitled to the value of his property. But as the Courts recognize the fact that the value of personal property is liable to fluctuation, the measure of damage íd a case of tortious conversion is usually its value at the exact time of conversion. It is clear that the property in question may have been worth double or treble the sum a week before the conversion that it was at the time of conversion. Hence the time when the value of the property is fixed or ascertained, was a most material fact to enable the jury or the Court to arrive at the correct sum to be awarded as damages. The jury, instead of presenting the general conclusion —that is, the amount to be recovered by the plaintiff — simply found and returned one of the collateral facts (the value of the property) upon which their general conclusion would necessarily have been based. That finding may or may not be the correct measure of damage.

Six thousand three hundred and eight dollars may have been the value of the property at the time of conversion, or at any other time. There is nothing in the verdict of the jury to make it certain that that is the correct amount for which the plaintiff should have judgment. The Court cannot presume that the sum assessed was the value of the property at the time of conversion. A special verdict must expressly present all the material facts, so that nothing shall remain to the Court but to draw from them the conclusions of law. (Practice Act, Sec. 174.) And such facts should be found, that the Court may be satisfied beyond a reasonable doubt that the conclusion which it draws from, and the judgment which it renders upon them, is correct and proper as between the parties. Had the jury in this case found the value of the property at the time of the conversion, we should be disposed to hold the verdict sufficient; but as it is, it is altogether too uncertain and defective.

Judgment reversed, and new trial ordered.