138 P. 1088 | Mont. | 1914
delivered the opinion of the court.
The plaintiff states his cause of action as follows: “(1) That on or about the 12th day of November, 1911, this plaintiff found, wandering upon the prairie in the county of Chouteau, a band of about five hundred (500) sheep belonging to this defendant, which said sheep this plaintiff immediately took into his possession and promptly gave notice to this defendant, the owner thereof, and that he cared for and fed the said sheep until the 29th day of January, 1912. (2) That $187 is a reasonable compensation for the care of said sheep; that $100 is a reasonable reward for the finding and beeping of said sheep. ’ ’ An allegation of nonpayment is followed by the prayer. The trial resulted in a verdict in favor of plaintiff, and, from the
1. Court and counsel apparently proceeded upon the assumption that sections 5178 to 5186, Revised Codes, dealing with the
2. Upon the trial, plaintiff was asked: “Q. Mr.-Kirk, what would you consider the reasonable reward for the finding of the band of sheep that you found, on or about the 12th day of November, 1911, at your ranch, numbering about 500 head?” and, over -objection he answered: “$100.” On cross-examination, he testified: “I base my claim for $100 for letting them
It is elementary that the law does not give something for nothing. Except in' those rare cases of aggravated circumstances where punitive damages are recoverable, the law proceeds uniformly upon the theory of compensation. If a party can be made whole, if he can be restored to the status quo, if damages in money will reimburse him for whatever he has done for, or suffered at the hands of, another, he cannot complain, and he has neither legal nor moral excuse for demanding more. To speak of an enforced gratuity is a contradiction of terms, and a suit to compel a gift is an anomaly in the law.
Counsel refer to section 5181, Bevised Codes, as authority for the position taken by the plaintiff and adopted by the court. That section reads: “The finder of a thing is entitled to compensation for all expenses necessarily incurred by him in its preservation, and for any other service necessarily performed by him about it, and to a reasonable reward for keeping it.” Standing alone, it does not admit of the construction placed upon it; but we are not permitted to consider it alone. Section 5178 provides: “One who finds a thing lost is not bound to take charge of it, but if he does so, he is thenceforth a depositary for the owner, with the rights and obligations of a depositary for hire.” When these two sections are construed together, the terms of section 5181 are made plain. The depositary for hire is only entitled to ordinary compensation, except in so far
3. Complaint is made of certain rulings upon the introduction of evidence, but these alleged errors will doubtless not occur upon a retrial.
While plaintiff cannot go beyond the issues made by the pleadings and prove the value of services rendered about the
Since this cause must be remanded for a new trial, we refrain from commenting upon the sufficiency of the evidence.
4. Complaint is made of instruction No. 3%, given to the
Reversed md remanded.