18 P. 881 | Nev. | 1888
The facts are stated in the opinion. Action to recover possession of a certain schooner, called the "Lillie Van," together with its rigging, masts, and other property thereon and connected therewith, all of the alleged value of one thousand nine hundred and ninety dollars, and one thousand dollars damages. It is alleged in the complaint that on June 16, 1886, at Glenbrook, in this state, defendant wrongfully and forcibly, against plaintiff's consent, took all of said property from said plaintiff's possession, and has ever since wrongfully and unlawfully withheld the same from plaintiff; that the use of said property, from June 16, 1886, to the time of the commencement of this action, was well and reasonably worth one thousand dollars. Judgment is demanded for a return of the property or its value, for the damages stated, and costs. In his answer, defendant admits that plaintiff is, and at all the times mentioned in complaint has been, the owner of all the property described therein. He denies the alleged or any conversion, or that he ever in any manner took said property, *170 or any thereof, from plaintiff's possession, or ever wrongfully or unlawfully, or at all, detained or withheld said property, or anything, from plaintiff. He denies all allegation of damage, or that the use of said property, during the times stated in complaint, was of any value to plaintiff. He denies that plaintiff, or any one on his behalf, ever demanded said property, or any thereof, or the possession thereof, until September 8, 1886, when the sheriff of Douglas county, under and by virtue of an order in this action, demanded said property of defendant and received the same. As a counter-claim defendant alleged that on or about September __, 1885, plaintiff employed him to take care of, and have charge of, said schooner, for one year, at an agreed price of fifty dollars per month and board; that in pursuance thereof defendant took care of and had charge and possession of said schooner from September __, 1885, until September 8, 1886, when said property was demanded by and surrendered to said sheriff, as before stated; that defendant never held or claimed to hold possession of said property except as a faithful agent and employee of plaintiff; that defendant's possession of said property was always the possession of plaintiff, and that defendant was at all times ready and willing to surrender the same to plaintiff; that plaintiff had not, since September, 1885, furnished defendant any board, and that defendant had been compelled to furnish the same, which was of the reasonable value of twenty-two dollars and fifty cents per month; that plaintiff had not paid said agreed wages of fifty dollars per month, or any part thereof. Defendant demanded judgment for eight hundred and sixty dollars, and costs. At the trial defendant was permitted to amend his answer by inserting an allegation that his services and board were reasonably worth seventy-two dollars and fifty cents per month during said time. Plaintiff recovered judgment upon the pleadings for the possession of all the property named in the complaint, and defendant had judgment for four hundred and seventy-three dollars and eighty-six cents for taking care of the property from December 1, 1885, to June 16, 1886, (seventy-two dollars and fifty cents per month,) and his costs, taxed at ninety-nine dollars and fifty-five cents. Subsequently, in overruling plaintiff's motion for a new trial, and by consent of defendant, the court modified the judgment by allowing plaintiff's costs up to the time of trial, taxed at thirty-seven dollars and seventy-five *171 cents, and ordering the same to be deducted from the costs taxed in favor of defendant. This appeal is taken from the judgment and from an order overruling plaintiff's motion for a new trial.
1. Plaintiff demurred to the answer on the ground that "said answer contains a misjoinder of causes of defense, in that it improperly sets up, by way of counter-claim and off-set to a simple action of replevin, a cause of action for work and labor of defendant for the plaintiff, — a matter wholly foreign to the subject matter of this action." The court overruled the demurrer, and in so doing counsel for plaintiff claim it erred. The statute provides as follows: "The answer shall contain * * * (2) a statement of any new matter or counter-claim constituting a defense, in ordinary and concise language. The counter-claim * * * shall be one existing in favor of the defendant, and against the plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action: First, a cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action." (Gen. Stat. 3068, 3069.) If, in the sense of the statute, defendant's cause of action — his claim for services in taking care of the property described in the complaint — arises out of the transaction set forth in the complaint as the foundation of plaintiff's claim, or if it is connected with the subject of this action, it is properly pleaded as a counter-claim; otherwise not. This statutory provision, which, in substance, has been enacted by many different states, has been a prolific source of judicial controversy. The language is obscure. At least, when applying it to different cases, courts have found it no easy task to ascertain just what was "the transaction set forth in the complaint as the foundation of plaintiff's claim;" and they have experienced even greater difficulty in determining whether, in a given case, the defendant's cause of action, set up as a counter-claim, was "connected with the subject of the action." Courts have differed as to what is the "transaction set forth in the complaint as the foundation of the plaintiff's claim," as well as to what is the "subject of the action." We shall not inquire whether, in this case, on demurrer, the word "transaction" should be restricted to the simple statement of the wrong complained of by plaintiff, as set forth in the *172
complaint, — that is to say, the alleged wrongful taking and detention of the property described, — or whether it should be held to embrace also all the facts and circumstances out of which the injury complained of arose, as stated by defendant in his answer. (But seeRitchie v. Hayward,
In the sense of the statute, is defendant's cause of action for labor performed by him in taking care of the property in question "connected with the subject of the action?" Mr. Pomeroy says: "In regard to what constitutes `the subject of the action,' there is no agreement whatever in the judicial opinions. Some of them have treated it as identical with the `cause of action,' which is plainly incorrect." (Pom. Rem. Sec. 775.) The author admits that, in certain cases, the things themselves, the land or chattels, may be regarded as the subject of the action. Mr. Bliss says: "The statute further authorizes a counter-claim which arises out of a cause of action which is connected with the subject of the action. * * * And, before we can understand the bearing of the provision, we must clearly appreciate what is meant by the phrase `subject of the action.' "(Code Plg. 373.) He also says: "The blunders that have been committed in this connection have chiefly arisen from not distinguishing thesubject of the action from the cause or from the object of the action, or from the facts which constitute it." Insurance Co. v. Chamberlin,
In this case counsel for plaintiff assert that defendant's claim for wages in taking care of the property in question is not a counter-claim, because it is not a defense against plaintiff's claim for delivery of the property, since plaintiff's indebtedness to defendant could not justify defendant in taking or detaining the property. The case in hand does not call for an intimation of opinion upon the correctness of the conclusion reached in the New York and Wisconsin cases referred to. Plaintiff sues to recover possession of property, or its value, and for one thousand dollars damages. Defendant's counter-claim, when established, certainly diminishes, and in whole or part defeats, plaintiff's claim for damages, if it does not his claim for possession of the property. It is true that plaintiff's claim for damages was not allowed by the jury, but it was set up in the complaint; and that was enough to authorize defendant to set up and recover upon any proper counter-claim, notwithstanding the fact that plaintiff's claim for damages was not valid. (Pom. Rem. Sec. 739.)Dunham v. Dennis,
Counsel for plaintiff also contend that there can be no counter-claim in an action to recover specific personal property. Whether this is the fact when plaintiff seeks merely to recover the property without damages, we need not inquire. It is not true when damages exceeding defendant's claim are sought, and the counter-claim constitutes a cause of action against plaintiff which is connected with the subject of the action. In Brown v. Buckingham, 21 How. Pr. 191, the court said: "The first point made by the plaintiffs on demurrer is that a counter-claim cannot be pleaded in an action for the possession of personal property. The Code, in general terms, and without limitation as to the nature of the action, provides * * * that the answer may contain a statement of any new matter constituting a counter-claim, which is a cause of action arising out of a contract or transaction set forth in the complaint as the foundation of the plaintiff's claim, or connected with the subject of the action. This language is sufficiently comprehensive to include the present case, and permits the pleading of a counter-claim in this action; and although the action of replevin, or for the possession of personal property, as it is now named, is considered as founded upon tort, I can see no good reason for holding that all claims of either of the parties against the other, arising out of the transaction set forth in the complaint, and made the foundation of the plaintiff's claim therein, cannot be adjusted and determined in one suit of this form of action, as in an action properly and technically on contract. And such I understand to be the effect of the decisions on this subject." In Wilson v. Hughes, supra, it is said: "There is no reason why the defendant in such an action may not rely upon any counter-claim he may have, whether it be legal or equitable, or both, just as in other cases." Our conclusion upon this branch of the case is that the property in question is the subject of the action; that defendant's demand for wages for taking care of the same prior to and at the time of the alleged conversion is connected with the subject of the action, and is properly pleaded as a counter-claim.
2. It is urged that the parol contract set up in the answer is within the statute of frauds, and void. But the record shows that defendant was permitted to amend his answer, and allege *177
that his services and board were reasonably worth seventy-two dollars and fifty cents per month from September __, 1885, to September 8, 1886. It is well settled that for labor and services performed under a contract declared void by the statute of frauds recovery on quantum meruit may be had. (Patten v. Hicks,
3. Defendant was entitled to his costs. Upon every issue raised by the pleadings he was the prevailing party, He recovered more than three hundred dollars upon his counter-claim, and plaintiff failed to recover damages. The order overruling plaintiff's motion for a new trial shows that his costs up to the time of trial were taxed at thirty-seven dollars and seventy-five cents, and that they were allowed by the court. Plaintiff complains because his trial costs were disallowed. The record does not show that any cost-bill, including plaintiff's trial costs, was filed, and we cannot presume, against the correctness of the judgment, that such a cost-bill was filed. If it was not, the trial costs were waived. We cannot, therefore, say the court erred, even though plaintiff would not have been entitled to them if a proper cost-bill had been filed in time, — a question we do not decide. We think the evidence justifies the verdict. The judgment and order appealed from are affirmed.