Loomis MacH. Co. v. Proctor ( 1936 )

Upon granting a rehearing the court had in mind the question of whether appellees had proven damages on account of being deprived of the use of the well drilling machine. The evidence shows, and the court found, that the "usable value" of the machine was $2 a day. Judgment was entered for statutory damages of double this amount for seventy days, the time which appellees were deprived of its use. The testimony further shows that the machine had not been operated continually while in appellees' possession; that they had drilled four wells with it in five months; that they were using it at the time the sheriff took possession of it.

"Q. And from June (the time they obtained the machine) did you use it continually, or off and on? A. Off and on, I did not get work all the time."

The burden was on appellees to prove the damage. There is no evidence to indicate that they could have rented the machine or had work for it during the time it was held by the sheriff or any portion of such time.

We stated in Roth v. Yara, 19 N.M. 8, 140 P. 1071, 1072, a replevin action, in regard to damages for the retention of a stallion: "It would seem clear that, while appellee might properly recover damages for loss of the use of the animal in question, it would nevertheless be incumbent upon him to prove with definiteness and certainty the damages actually suffered by him. It does not appear from the record in this case that he could have used the animal in question at any time, had the animal been in his possession, and his testimony upon the subject reduces the element of damages in this case to one of speculation and uncertainty, in our opinion."

There being no definite testimony upon which damages could be predicated, the district court erred in allowing any damages for the retention of the machinery.

Our former judgment will be vacated; the cause will be reversed and remanded, with instructions to enter judgment for appellees in the replevin action, without damages for the retention of the property.

It is so ordered.

HUDSPETH, C.J., and SADLER, BICKLEY, and ZINN, JJ., concur.