62 Neb. 254 | Neb. | 1901
This is an action of replevin involving some 536 sheep taken by, the plaintiffs from the possession of the defendant, who held them under a written contract of agistment whereby he was to receive one-half of the increase after making good all losses and one half of the wool-clip, by way of compensation. The contract was for a term of three years, but at the end of the first year the plaintiffs, claiming that the defendant had failed to comply with the terms of the contract as to care, feed and protection of the sheep, so that a number had been lost and the others damaged, demanded possession, and on refusal instituted this suit. Upon trial, the jury found the right of possession to be in the defendant, found that he had a special ownership and interest of the value of $239.80, and assessed his damages by reason of the detention of the property by the plaintiffs at $400. Judgment was rendered accordingly, and the plaintiffs prosecute error to review this judgment and the proceedings on which it is based.
The defendant, in his answer, after a general denial, set up in a further paragraph the written contract between the parties and a number of affirmative defenses based thereon, claimed a special interest or ownership by way of agister’s lien for $292, the value of his agreed compensation up to
What, then, is the measure of damage for detention? Ordinarily it is interest upon the value of the property.' Hooker v. Hammill, 7 Nebr., 231; Hainer v. Lee, 12 Nebr., 452; Dodge v. Runels, 20 Nebr., 33. But where the use of the property is valuable, the value of the use may and often does considerably exceed the lawful rate of interest. In such case interest does not afford adequate compensation, and, accordingly, it is'well settled that the value of the use, where use has a special value above and in excess of interest, is recoverable as damages for detention, and is the measure thereof, instead of interest. Boston Loan Co. v. Myers, 143 Mass., 446; Williams v. Wood, 61 Minn., 194, 63 N. W. Rep., 492; Nash v. Larson, 83 N. W. Rep. [Minn.], 451; Burt v. Burt, 41 Mich., 82; Shinn, Replevin, sec. 646. Another kind of damage which may properly be allowed to a defendant arises from change in the value or condition of the property while withheld from him.' In this state the value of the property is fixed with reference to the time when it was taken under the writ. Heidiman-Benoist Saddlery Co. v. Schott, 59 Nebr., 20. If the property is injured or deteriorates in value after it is taken, a return does not
We have not overlooked in this connection an argument made on behalf of the defendant that since the record shows that by leave of court the answer was amended by interlineation at the trial, and the answer set forth in the record is merely stated to have been filed prior to the trial, there is no means of knowing what the amendments were, and they should be presumed to be sufficient to sustain the dámages in question.' The order allowing the interlineation does not specify its nature, but the clerk certifies that the transcript is full and complete and contains the answer of the defendant. This raises a presumption that it
As the error in the assessment of damages is curable by remittitur, without a new trial, it becomes necessary to examine the other errors assigned. These relate to the form of the verdict, to rulings npon evidence, and to the charge of the court. The verdict finds the right of possession in the defendant, finds the value of the property, finds that the defendant has a special ownership and interest and the value thereof, and assesses damages for detention. The form is clearly' unobjectionable, and the evidence showed an agister’s lien for the agreed compensation under the contract, which is sufficient basis for the finding of special ownership. The repeated rulings of this court that proof of lien or special ownership will not support a finding of general ownership are not in point.' True, the statute directs the jury to find whether the defendant has the right of property or the right of possession only. But as special property means right of possession coupled with a limited or qualified interest, the substance of the statutory requirement was complied with/ Counsel contend, however, that an agister’s lien existed only as to certain of the sheep subsequently delivered to be kept at an agreed price in money. The statute providing for an agister’s lien does make use of the words “contract price,” and the word “price” in ordinary parlance undoubtedly refers to money. But this is not controlling. Contracts like the one in question have always been considered agistment contracts equally with those where a money compensation was agreed on. Bass v. Pierce, 16 Barb. [N. Y.], 595. The reason of the law extends to all contracts of agistment,
Error in the rulings upon evidence is assigned, in that the court excluded all evidence with reference to the arbitration clause in the contract and a demand by the plaintiffs for arbitration, and also rejected an offer to prove tender of the compensation due under the contract prior to suit. These rulings were correct. 'Whatever distinction may be made elsewhere between arbitration generally and arbitration as to damages only* it is well settled in this state that a provision in a contract requiring arbitration,
Other assignments relate to the admission of testimony with respect to statements and representations made to the defendant prior to the contract with reference to the kind and condition of the sheep that were to be delivered. This testimony appears to have been immaterial, and without correction by the trial court might have been prejudicial. But the court clearly and explicitly withdrew this testimony from the jury in the charge, and directed them not to consider any conversations or statements made prior to the contract, but to be governed solely by its terms. The advisability of admitting immaterial and possibly .prejudicial matter and afterwards withdrawing it by instruction is open to grave doubt; but in the case at bar it was necessary to go into the kind, quality and condition of the sheep before they were taken by the defendant, since their condition at that time bore directly upon the causes of their condition at the time suit was brought, charged by plaintiffs to be due to improper care and handling by defendant. The immaterial testimony was so closely connected with and difficult to separate from testimony of the same witnesses going to material and important issues, that we think any error in its admission was cured by the instruction referred to. American Fire Ins. Co. v. Landfare, 56 Nebr., 482; Darner v. Daggett, 55 Nebr., 198. Complaint is also made that the court permitted one of the plaintiffs to be cross-examined as to losses in other flocks taken from the same original lot of sheep as those delivered to the defendant under his contract. The witness had given testimony tending to show that a large number
The charge of the court, so far as it relates to the damages recoverable, has been considered already. Apart from its failure to define accurately Avliat is meant by damages for detention, it is not open to criticism, and sufficiently coArered the points raised in the instructions tendered by plaintiffs. The most serious of the errors assigned as to the instructions is that they do not make any distinction betAveen the sheep delivered under the original contract and those subsequently delivered under distinct agreements of a different character. But the instructions requested by the plaintiffs are open to the same objection. No point seems to have been made in the instructions
Misconduct of the jury is also charged, but review of the evidence satisfies us that the finding of the trial judge to the contrary was correct.
Apart from the assessment of excessive damages for detention, we find no prejudicial error. It is therefore recommended that in case the defendant, within thirty days from the filing hereof, remit all damages awarded him for detention of the property in controversy in excess of lawful interest upon the value of his interest from the date of the taking, the judgment be affirmed; otherwise, to be reversed and the cause remanded for a new trial.
For the reasons stated in the foregoing opinion it is hereby ordered that if the defendant, within thirty days from the filing hereof, remit all damages awarded him for detention of the property in controversy in excess of lawful interest upon the value of his interest from the date of the taking, the judgment be affirmed; otherwise, to be reversed and the cause remanded for a new trial.
Judgment accordingly.