34 Mont. 517 | Mont. | 1906
delivered the opinion of the court.
This is an action in claim and delivery brought by the plaintiffs, Haggerty Brothers, to recover the possession of certain personal property consisting of horses, wagons, etc., and for damages for the wrongful detention of the same. The complaint is in the usual form. The answer denies plaintiffs’ title or right of possession to the property, and sets forth that on August 29, 1904, plaintiffs and defendants entered into an agreement in writing by the terms of which defendants purchased
Upon the trial the court gave instruction No. 10, as follows: “If you find for the defendants in this action, you will assess their damages at the value of the use of the property taken by the plaintiffs from the time of the taking of the same, to-wit, January 17, 1905, up to the present time.” And refused to give an instruction asked by the plaintiffs, as follows: “The court instructs the jury that a party who claims compensation for an alleged wrong done must show, not only that he has suffered a loss on account of the injury, but also what was the amount of the loss, and the burden of proving both these things is upon the party alleging the wrong.”
The jury returned a verdict in favor of the defendants for the return of the property, and for $300 damages for the wrongful taking and detention of it by the plaintiffs, and judgment was entered in accordance with the verdict. From this judgment and an order denying their motion for a new trial, the plaintiffs appeal.
In their brief appellants make these, among other, assignments of error: (1) The giving of instruction No. 10; and (2) the refusal of the court to give plaintiff’s requested instruction above. These assignments, however, are not made in plaintiffs’
We have examined the other assignments made, but do not find any merit in any of them. There appears to have been no error committed in determining the issue as to the ownership of the property. The errors with respect to the instructions mentioned above go to the question of damages. Therefore, following further the rule in Brunnell v. Cook, this cause will be remanded to the district court, with directions to grant a new trial of the issue as to defendants’ damages for the wrongful detention of the property by plaintiffs, unless the parties can agree as to
When this issue is determined, the judgment will be modified accordingly.
Modified.