118 P. 564 | Utah | 1911
Lead Opinion
Respondent, a corporation, brought this action in, claim and delivery to recover the possession of its automobile which it alleged appellant wrongfully detained.from it. The complaint is in the usual form in such cases. Appellant filed an answer wherein he admitted respondent’s corporate capacity, and that it was the owner of the automobile, and coupled therewith he added a general denial of all other allegatious contained in the complaint. He further answered, and, as an affirmative defense, he, in substance, averred that the respondent on a da,y named by him had delivered the automobile in question to him as a mechanic to have the same repaired; that he (appellant) had received said automobile as such mechanic, and that he, at the request of respondent, had furnished certain material and had bestowed labor upon said automobile to repair the same and that he did repair the same, and that said material and labor so furnished and bestowed in repairing said automobile was of the reasonable value of $281; that appellant had notified respondent that he had completed the repairs on said automobile, and that the material furnished and labor bestowed by appellant upon the same were of the value of $281, and that he claimed a lien on said-automobile for said amount; that no part-of said amount had been paid to him; and that by reason of the premises he claimed a lien on said automobile as aforesaid and prayed judgment awarding him possession thereof. Respondent in
Upon substantially the foregoing issues, the case was tried to the court without a jury. The court, after finding that respondent is a corporation, which was admitted, further found: “That plaintiff is the owner and entitled to the immediate possession of one certain four-cylinder, five-passenger touring car automobile, known as the ‘Ford Model B’ No. 241, of the value of $750; that defendant herein wrongfully and unlawfully withholds and detains said automobile and personal property from the possession of the plaintiff herein; that demand was made by said plaintiff upon said defendant for the possession thereof prior to the institution of this action, but that, notwithstanding
Appellant now, in substance, contends that the so-called findings of facts are not supported by the evidence, that the conclusions of law are not sustained by said findings, and that the judgment is contrary to law. It will be observed
“Any mechanic or other person who shall make, alter, repair, or hestow labor upon any article of personal property, at the request of the owner of such property, shall . . . have a lien upon such articles for his reasonable charges for the labor performed and for any materials furnished and used in making such alteration, repair, or improvement.”
It is apparent that the so-called findings of fact-are in truth mere conclusions, and, further, that upon the real issues in the "case which were presented by appellant’s affirmative defense there are no findings whatever. If this case, therefore, were to be treated as a law case, all that we could do would be to either reverse 'the judgment because it is not supported by proper findings and remand the cause for a new trial, or to reverse the judgment, and under the authority of Utah Ass’n, etc. v. Home Fire Ins. Co., 36 Utah, 20, 102 Pac. 631, and Dillon Imp. Co. v. Cleaveland, 32 Utah, 1, 88 Pac. 670, remand the cause to the district court, with directions to make findings upon all the issues in accordance with the evidence and make conclusions of law thereon and enter judgment accordingly. Treating this case as equitable, however, as, in view of the issues, we think it must be, we may either make findings in accordance with the evidence and direct what the judgment shall be, or we may direct the district court to make such findings of facts and conclusions of law as we may direct and enter judgment accordingly.
After a careful consideration of the evidence, we are all of one mind that the district court erred in not finding the issues in favor of the lien which appellant set up in his answer. We are convinced that when the whole evidence is considered and is given its proper force and effect, and especially in view of the admissions of respondent’s agent who directed the repairs to be made .upon the automobile in question, the findings sustaining appellant’s lien are not only justified, but
IJpon the other issues presented by appellant’s answer (and there are no other contested issues), the district court is directed to find the facts in favor of appellant in accordance with the averments contained in his affirmative defense, and to make conclusions of law giving appellant a lien upon the automobile in question for the value of the repairs made by him as found by the court.
The judgment, findings of facts, and conclusions of law are therefore vacated and set aside, and the cause is remanded to the district court, with directions to find the issues presented by appellant’s affirmative defense in his favor, to set a time for the hearing of evidence upon the question of the value of the repairs, and to hear such additional evidence upon that question as either or both of the parties may pro
Rehearing
ON Aeplication for Rehearing.
Counsel for respondent bave filed a petition for a rehearing. the grounds upon wbicb the application is based" are: (1) tbat tbis court “erred in treating the case as an equitable one;” (2) tbat tbis court “erred in remanding said cause for the purpose of making findings of fact in favor of appellant and conclusions of law giving appellant a lien upon the automobile in question.” Counsel contend “tbat, even if it be true tbat said action is an equitable one, . . , tbis court erred in reviewing the evidence and going behind the findings and decree of the trial court, for the reason that sucb .review is improper, where no dear oversight or mistake on the part of the trial court occurred.”
This is a case in wbicb an equitable defense is pleaded and equitable relief asked for by the defendant in an action at law. Nor the purpose of disposing of the questions raised by the affirmative part of the defendant’s answer, it was necessary for tbis court to redew and weigh the evidence as preserved in the bill of exceptions, and we
Mr. Pomeroy, in his discussion of this provision of the Code (Pom. Rem., section 92), says:
“There does not seem to be any limit to the use of such defenses other than is found in the very nature of equity jurisprudence itself. Whenever equity confers a right, and the right avails to defeat a legal action — that is, shows that plaintiff ought not to recover in his legal action — then the facts from which such a right arises may be set up as an equitable defense in bar. There can be no other limitation, unless we would defeat the plain intent of the statute.”
Under the liberal construction thus given the foregoing provision of the Code, it necessarily follows that a defendant in an action of ^replevin (claim and delivery) may interpose an equitable defense, and may, if the “new matter” pleaded and the facts proved warrant it, obtain equitable relief. In 34 Cyc. 1414, under the caption, “Title in or Lien of Defendant,” the rule is stated as follows:
“Property "in defendant is a good defense in an action of'replevin, and this is ordinarily true whether it be an absolute, or a special or qualified property in the goods which are the subject-matter of the litigation.”
And again, on page 1417 of the same volume, it is said:
“Since the adoption of Codes in most of the states, the doctrine of set-off and counterclaim has undergone much change. At first counterclaims were held not to be available in any action for a tort, and therefore not in replevin, which sounds in tort. But this rule has been so far modified as to allow the interposition of a counterclaim in the full sense of the Code, whether arising on contract or based*553 upon tort, in an action of replevin, whenever such counterclaim is founded upon a cause of action arising out of the transaction set forth in the complaint as the foundation of plaintiff’s claim, or whenever it is connected with the subject of the action.”
The following cases also illustrate and support this doctrine: American Soda Fountain Co. v. Futrall, 73 Ark. 464, 84 S. W. 505, 108 Am. St. Rep. 64; Reardon v. Higgins, 39 Ind. App. 363, 79 N. E. 208; Cooper v. Kipp, 52 App. Div. 250, 65 N. Y. Supp. 379; Guille v. Wong Fook, 13 Or. 577, 11 Pac. 277; Ludden & Bates v. Hornsby, 45 S. C. 111-121, 22 S. E. 781; Cobbey on Replevin, section 1148.
Coming, now, to the merits of the case, Earl Dunshee, who was an officer of the plaintiff corporation, and who represented plaintiff in the several transactions out of which this controversy arose, testified that, before the repairing for which a lien is claimed was done, he took the automobile in question1 to the repair shop' of one Spiegel, and had Spiegel do some repair work on it; that he “took it up to him three or four times;” that he finally left it with Spiegel with a bequest for him to repair it, and that Spiegel promised to do so; that on one of these occasions one Merickle went with him to Spiegel’s place of business. Spiegel testified that the automobile referred to by. Dunshee was- a Reo, whereas the automobile repaired by McCurtain was a Eord. Quoting: “The car brought there by Earl Dunshee was a Reo I believe they call it. It was not the Eord car mentioned in the complaint. It was a different car entirely. Mr. Dunshee never brought a Ford car into the yard. The car spoken of by him taken into the yard was the Reo, not the Ford car mentioned in the complaint a.t all. I never did make any repairs on the Ford car prior to the time that McCurtain took it.” Merickle was called as a witness by plaintiff, and testified that he went to Spiegel’s repair shop- in company with Dunshee on the occasion referred to by Dunshee in his testimony. On cross-examination he said: “Mr. Dunshee asked Mr. Spiegel to fix up the machine. It was a Reo machine
McCurtain’s right to recover in this action does not depend, however, upon the question as to whether Spiegel’s version of the transaction or' that given by Dunshee is correct. Dunshee, however, did testify that he made no contract with McCurtain to repair the automobile in question. McCur-tain, on the other hand, claims that Dunshee did contract with him to repair the car, and that he, at Dunshee’s request, went and got the car, and took it to the repair
The evidence quoted and referred to clearly establishes the following facts: (1) That Dunshee left a Reo automobile at Spiegel’s for repairs, and soon thereafter came there with a Ford, the automobile in question, and that-he and McCür-tain together examined the Ford machine to determine the nature and extent of the repairs required to put it in good
When the evidence was all in, and both sides had rested, the court, addressing counsel, said: “I will say what the court thinks of these facts, and I would like to hear from counsel as to the law on the facts as I will undertake to give which the evidence shows. The facts, as I take it from the evidence in this case, briefly stated, are: That Mr. Dunshee, acting for the plaintiff in this case, left his ear tb be repaired, as he thought, with Mr. Spiegel. That later he came there, and in conversation with Mr. McOurtain, the defendant, he said, ‘Go ahead and fix it up. Get it done as quick as you can.’ Words to that effect. Mr. McOurtain, believing that he had a right to do it, did all the work on this car, became responsible for the assistance that was given to him, employed Mr. Morehouse, and that whatever was done was done by Mr. McOurtain. And, in addition to that, the court finds that there was no delivery made by McOurtain of the car to Mr. Dunshee. Mr. Dunshee took it without any delivery being made; and, further, that there was something due, was at that time, from plaintiff in the action for the repairs to some one.
The first impression of the writer of this opinion was that counsel for plaintiff, having induced the trial court to rule that the actual value of the repairs was, under the issues immaterial, and plaintiff having failed, because of such ruling, to introduce any evidence on this point, this court should direct the trial court to make findings on this issue in accordance with the evidence already adduced; but in deference to the opinion and judgment of his associates on this feature of the case he fully concurred in the disposition made of the case by the opinion of the Chief Justice. We are, however, clearly of the opinion that this court in remanding the cause with directions to 'the trial court to reopen the case for the purpose of permitting the parties to introduce further evidence, if they so desire, in regard to the value of the repairs made by McCurtain on the automobile, dealt as liberally with plaintiff as the record in the case warranted.
The petition for a rehearing is denied.
Concurrence Opinion
(concurring).
I, too, think the .petition should be denied. What here chiefly divides the parties is this: The plaintiff claims that its agent left the machine with Spiegel to be repaired, and hence it was liable to him, if any one, for the repairs; the defendant, that the machine was left with him or turned over to him by plaintiff’s agent, and that he, and not Spiegel, was requested or engaged to repair it. If the facts are as contended for by the defendant, then, of course, he was entitled to hold the machine until the repairs were paid. If, on the other hand, as claimed by the plaintiff, Spiegel, and not the defendant, was engaged to make the repairs, then the plaintiff, as against the defendant, was entitled to the possession of the machine though the repairs were not paid for.' On this crucial point, the real controversy in the ease, the trial court made neither findings nor conclusions. The pleaded defense of a claim of lien under which the defendant asserted a right to hold possession of the machine being equitable in its nature, we deemed it our duty to look into the evidence to ascertain the facts in respect of these contentions. We had but little difficulty in determining that the plea was well founded. By that I do not mean that the evidence in that regard is wholly without conflict. Plaintiff’s agent testified, in substance, that he left the machine with Spiegel to be repaired, and that he had engaged him to make the repairs. Spiegel testified to the contrary. The defendant and other witnesses testified that the machine was left with or turned over to the defendant, and that he was engaged by plaintiff’s agent to make the repairs. The evidence, without conflict, shows that the defendant furnished the material and employed and performed the labor on the machine and made the repairs wholly independent of Spiegel. When the repairs were completed and the machine ready for delivery, the defendant, at the request of plaintiff’s agent, took the machine to the latter’s place of business, there left the machine on the street, entered the agent’s office, and at his request proceeded to malee out an itemized account of the repairs. While he was doing that, the agent clandestinely directed another to take the machine,