111 P. 51 | Or. | 1910
Opinion by
It is contended that, since the complaint described in a particular manner the personal property undertaken to be recovered, the defendant had the right to rely upon the specification thus given, and, such being the case, errors were committed in permitting the plaintiff, over objection and exception, to testify in answer to inquiries as follows:
“Q. What paint was on these sheep before shearing, at the time you separated them?
“A. They were branded with a red eleven, or two bars.
“Q. What kind of paint was used in making that with?
“A. I used a bought and prepared red paint. * *
“Q. Can you describe what appearance it made on the sheep as to color?
“A. It was a solid red paint.
“Q. Had these yearlings been branded prior to that time- with any other paint, any other colored paint?
“A. Half of them was branded when lambs with a green paint, and the other half branded with red paint.
“Q. And where was the red paint? When did you brand with red paint, the last branding?
“A. It was about the 4th or 5th of March, before they were turned out on the range.
“Q. And where was that red paint put with reference to the green paint which had been put on part of the lambs ?
“A. On the back close to where the green paint was.”
“That the property is in the hands of the defendant, I instruct you is true, but plaintiff must establish by a preponderance of the evidence, as I have stated, that the defendant is wrongfully in such possession of said sheep, and is wrongfully withholding them from the plaintiff.”
An exception having been taken to this part of the charge, it is maintained that an error was committed in giving it, in that by the language so employed the jury were precluded from finding that the defendant did not have the sheep claimed by the plaintiff, and that the court thereby determined an issue in respect to which conflicting testimony had been offered by each party. It will be remembered that, pursuant to an indorsement on the
“This is what is known as a replevin action, and in a replevin action the plaintiff sues to recover certain specific property described in his complaint, and not property of a like or similar kind. Therefore you must find from the evidence that the sheep taken by the officer, Walter Palmer, under a writ of replevin in this case, were the identical sheep which the plaintiff alleges were taken by the defendant from plaintiff before you will be justified in finding for plaintiff. * * If you find from the evidence that there was or is a difference in value between the ewes and wethers mentioned in the complaint, then, before you can find for plaintiff, it is necessary that he has proved how many of the sheep were wethers and how many were ewes, and also the value of the ewes and the wethers separately, and, if there is no evidence from which you can with reasonable certainty calculate the value of the wethers and of the ewes separately and the total value, then your verdict must be for the defendant.”
“If the plaintiff has so established the allegations of his complaint, then your verdict should be for plaintiff in so*274 many sheep described in the complaint as you find belong to the plaintiff and are wrongfully withheld by the defendant, whether such number be one hundred or a less number, and you will also find and place in your verdict what you find to be the value of the said sheep so withheld; but if you find that the defendant did not take any of plaintiff’s sheep, and that he is not wrongfully withholding any of plaintiff’s sheep described in the complaint, then you should return your verdict to that effect and find for the defendant.”
It is argued by defendant’s counsel that the part of the charge' so given did not cover their requests, and that errors were committed in denying their solicited instructions, and in charging the jury as last hereinbefore indicated. A text-writer in discussing the necessity of finding the value of separate articles, says:
“In replevin to recover a number of articles of different value having no identity of character, the verdict must assess the separate value of each of the different articles.” Shinn, Rep. § 627.
It will be kept in mind that all the sheep undertaken to be recovered were yearlings. The bill of exceptions states that plaintiff testified that he found in the defendant’s flock 90 of his sheep, consisting of 47 ewes and 43 wethers, which at the time of the trial were worth $4 per head. In an action of replevin, if the property has not been delivered to the plaintiff, the jury are required to assess its value if their verdict be in his favor. Section 153, B. & C. Comp. In Pickett v. Bridges, 10 Humph. (Tenn.) 171, Mr. Justice Turley, referring to a somewhat similar provision of the statute of Tennessee, says:
“Now, if all the property replevied be alike in its character, and not possessed of a distinct and separate quality, and be so described in the proceedings to be, a general assessment of value ought to be made. * * But if it be for distinct and separate articles having no identity of character, the value ought to be assessed for each distinct*275 and separate article, as if it be for a horse and a wagon, a negro, and a mule.”
In Guille v. Fook, 13 Or. 577, 586 (11 Pac. 277, 281), Mr. Justice Thayer, in referring to the personal property described in a verdict, says: “There was undoubtedly a difference in the size and value of the hogs.” In the case at bar, however, as the sheep were of a uniform age, they evidently had an identity of character, and the finding that the 90 head were worth $360 was equivalent to a verdict that they were of the value of $4 each, and in our opinion the finding is sufficient in that particular. No error was committed in denying the requests or in giving the instructions complained of.
“In every action for the recovery of money only, or specific real property, the jury, in their discretion, may render a general or special verdict. In all other cases the court may direct the jury to find a special verdict upon all or any of the issues; and in all cases may instruct them, if they render a general verdict, to find upon particular questions of fact, to be stated in writing.” Section 154, B. & C. Comp.
In construing this clause of the statute, it has been held that the refusal of the court to direct special findings was a matter within its discretion, and would not be reviewed on appeal. Knahtla v. Oregon Short Line Ry. Co., 21 Or. 136 (27 Pac. 91) ; White v. White, 34 Or. 141 (50 Pac. 801: 55 Pac. 645.)
Other errors are assigned; but, deeming them unimportant, the judgment is affirmed. Affirmed.