208 P. 589 | Mont. | 1922
delivered the opinion of the court.
This is an action in claim and delivery to recover possession of a Chalmers automobile. Plaintiff alleges that he is the owner and entitled to the immediate possession of the car (particularly describing it); that its value is $975; that about July 5, 1919, defendant wrongfully and without plaintiff’s consent obtained possession of the car; that about July 19, 1919, plaintiff made demand upon defendant for possession; that the demand was refused; and that defendant still wrongfully detains the property. The answer admits that defendant obtained possession of the ear about July 5, 1919, and retained possession thereafter, but dénies that the possession was at any time wrongful; admits that the car is of the value of $975; admits the demand made by plaintiff and refusal by defendant; and otherwise puts in issue all the allegations of the complaint. The trial of the cause resulted in a verdict and judgment for plaintiff, but on defendant’s motion a new trial was granted, and this appeal is from the order.
By a memorandum opinion the trial court indicated that the motion was granted solely upon the theory that the verdict will not support the judgment. The verdict is as follows: “We, the jury in the above-entitled action, do find that the plaintiff is entitled to the possession of the automobile in controversy in tbis action, and do find for the plaintiff and against the defendant. ’ ’
The trial court assumed to justify its conclusion upon tho authority of Woods v. Latta, 35 Mont. 9, 88 Pac. 402, and Hickey v. Breen, 40 Mont. 368, 20 Ann. Cas. 429, 106 Pac. 881. In each of those cases a special verdict only was returned, and in each instance the verdict failed to find upon all of the issues submitted to the jury. This court did not go further in its decision of either case, upon the question of the
The pleadings and the evidence in this case presented to the jury the question of ownership of the car and the right of possession as an incident of that ownership. Each party claimed to be the absolute owner, and neither claimed any right of possession.independently of his claim of absolute ownership. The verdict quoted above is a general verdict. It finds for the plaintiff and against the defendant, and disposes of every issue presented. It determines that plaintiff is the owner of the car and entitled to the immediate possession of it, and that the defendant’s retention was wrongful. (O’Farrel. v. McClure, 5 Kan. App. 880, 47 Pac. 160; Kluse v. Sparks, 10 Ind. App. 444, 36 N. E. 914, 37 N. E. 1047.)
In addition to the general finding, the jury found specially that plaintiff is entitled to the possession of the car, but since this finding is not inconsistent with the general verdict it may be disregarded. It does not' impair the verdict in the least. (Washburn v. Roberts, 72 Ind. 213.)
That a general verdict alone is sufficient in an action in claim and delivery, if the issues warrant it, is determined by our statute. (Sec. 9361, Rev. Codes 1921; Wheeler v. Jones, 16 Mont. 87, 40 Pac. 77.)
Section 9363 provides that in an action in claim and delivery the jury “shall find the value of the property,” but this means only that the value shall be found whenever it is in issue (Frank v. Symons, 35 Mont. 56, 88 Pac. 561), and the reason for the requirement is that the judgment must be in the alternative (sec. 9406, Rev. Codes 1921), which requires that the value be determined by the pleadings or by the jury. In this instance the value of the car was conceded by both parties to he $975, and there was therefore nothing for the jury to find upon the question of value.
It is not controverted in the evidence that plaintiff Avas, at one time, the. owner of the ear and entitled to its possession. The defense interposed was that defendant had purchased the car in good faith for value from one W. B. Shelly, and Shelly testified that he had purchased it from plaintiff. Plaintiff denied that he had ever sold the car to Shelly or had authorized him to dispose of it; indeed, the evidence concerning the entire transaction betAveen plaintiff and Shelly is in sharp conflict, but the jury resolved the conflict in favor of plaintiff, and it is made manifest that the trial court did not grant a new trial upon the ground of insufficiency of the evidence.
It is suggested by counsel for defendant that certain in- struetions given by the court are erroneous, and that if the court reached the right conclusion upon the motion, the particular reason assigned will not be controlling. Instructions 1 and 3 are correct so far as they go, and if defendant desired a more complete statement of the law in either instance, it was incumbent upon him to tender a proper instruction, and the record fails to disclose that he did so.
Instructions 2 and 4 are attacked upon the ground that each of them omits to inform the jury that if plaintiff held Shelly out as the owner of the car, he would be estopped to deny such OAvnership as against anyone who purchased from Shelly relying upon his ostensible ownership, but the defense of estoppel Avas not pleaded, and for this reason neither instruction is open to the objection now made.
Reversed.