Clarke v. Johnson, 187 P. 510

Clarke v. Johnson

187 P. 510 | Nev. | 1920

By the Court,

Sanders, J.,

after stating the facts:

I. This is an action which at common law would have been called replevin. In an action of replevin the property is the subject of the action. Therefore, under the quite liberal provisions of the practice act (Rev. Laws, 5046-5052) as to counter-claims, and upon the authority *365of Lapham v. Osborne, 20 Nev. 168, 18 Pac. 881, we are of the opinion that the demurrer interposed to the answer and counter-claim, the motion to strike it out, and the motion for judgment upon the pleadings were properly overruled and denied. It follows, therefore, that the court did not err in permitting respondent to testify as to how he happened to cause the repairs to be made and the replacements installed.

2. The case is divided by the trial court into two •branches. One represents respondent’s right to have judgment for the repairs item, and the other the respondent’s right to the recovery of the possession of the tires and replacements or their value.

The court found that respondent was entitled to judgment for the repairs item because plaintiff took away the trucks, took respondent’s tires and replacements, and took the benefit of the money he had expended to put them in condition for use, stating that they were bettered -at Crumley’s expense, and that if a man accept the benefit of another man’s work and money he should pay for what he gets. It is fair to assume from this general statement taken from the court’s opinion, read in connection with its decision as requested, that the court attempted to apply the rule of voluntary acceptance of services as creating a liability to pay the reasonable and fair value thereof. This rule applies, however, only where the party to whom the services are rendered is free to take their benefit or to reject it. If the services are of such nature as he has no choice but to accept them, he cannot be said to accept them voluntarily. Such acceptance, therefore, creates no liability. 2 Page on Contracts, sec. 776.

The court in its opinion states:

“What should be done about the repairs item presents more difficulty, because that amount represents value or property that cannot be removed from the trucks.”

This is true. The repairs, at the time plaintiff took possession of the trucks, had gone into and become a constituent part of the property. In this situation the *366owner had no alternative, no choice but to accept the services. This being the fact, there was no implied promise on the part of the owner to pay for the services, nor did the law create one. Riddell v. Ventilating Co., 27 Mont. 54, 69 Pac. 241.

Upon this branch of the case we conclude the court erred in rendering judgment' in favor of respondent and against appellant for the amount of the repairs item, to wit, $339.4(3.

3. Counsel for the respondent insists that the judgment should be sustained upon the several grounds: First — That the transaction between the conditional vendor and vendee was in its essence a mortgage, Johnson becoming the mortgagor and the LeachFrawley Company the mortgagee, and argues from this premise that as the possession of the trucks was delivered to the mortgagor and he was entitled to use them, and did use them, as his own, the law created an implied authority upon Johnson to incur the expense of keeping the property in a necessary state of repair during the period of the contract. Second — That, Johnson being the apparent owner of the property, and Crumley having dealt with him, as he had the right to do, as an owner, Crumley is entitled to the protection of a court of equity upon the maxim that where one of two innocent persons must suffer by the wrong of another, the one who enables such other to commit the wrong must bear the consequences. In view of the court’s findings, we are precluded from substituting the conclusions of counsel for that of the court, and make a different finding.

4. As to the other branch of the case, we conclude that the court was correct in adjudging and decreeing Crumley to be the owner and entitled to the return of the tires and replacements, not so much, however, on the ground that both fair dealing and the law required the return of Mr. Crumley’s property to him as upon the proper construction of the covenant in the sales contracts, whereby it is expressly provided:

*367“That any equipment, repairs, tires or accessories of any character placed upon said trucks during the continuance of said agreement shall be and become a component part thereof, and that the title thereto shall immediately become vested in the seller and be included under the terms of said agreements.”

From this it is apparent that the seller itself regarded tires and replacements as being separable and severable distinct parts, and not accessions. The vendor recognized that the vendee might acquire a separate property interest in tires and replacements during the period of the contract; otherwise there would have been no necessity for the provision.

“Where the seller of an automobile under a contract of conditional sale retakes the automobile upon default of the buyer to keep the terms of the contract, he is entitled to any tires or other replacements which the purchaser placed on the machine while it was in his possession, provided the title to such parts passed to the purchaser when he acquired them.” Berry, Automobiles (2d ed.) 793.

The lower court found- Crumley to be the owner of the tires and replacements, and nothing is offered in opposition to this finding, other than the sale contract, to which Crumley was not a party.

We conclude that the judgment must be reduced, and the respondent have judgment for the sum of $816.40, less the sum of $339.40, making a total of $477.