*4 reads: tion PAYNE, defendant, find in favor of you may “Before JERALD counterclaim, following propo- one of the must find that you on his sitions is true:

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“ 1. That Plaintiff extended the time or for waived payments for requirements without notice to Defendant to timely payments the contrary.

“2. Lease was That the to Agreement agreement purchase and that:

“(a) failed Plaintiff to send notice to Defendant about the of sale tractor; or, “(b) Plaintiff not conduct the sale in a reason- commercially able manner. true,

“If find that either 1 you or 2 is award proposition you may Defendant such as are allowed under the other instruc- damages tions herein.”

This instruction to if permitted the award to jury damages Payne found either 1 or al- they to be true. It proposition proposition lowed the to award “such as are allowed under the damages However, other instructions herein.” other on instruction was one damages telling the it could award no more simply $9,194.25. than for in the Payne’s relief amount of There prayer were no instructions the elements for each defining damages of claim and there were no instructions for limiting damages attachment, separate claims of unlawful unlawful repossession, and failure sell in a to reasonable manner. Under commercially circumstances, these it is not that the verdict surprising jury’s $9,194.25. exactly

We consider first the matter of waiver or extension of the install- ment and how it to payments applied separate counter- Payne’s claims. A of waiver of the times for jury finding making install- ment was not to recover on his payments necessary counterclaim of failure the truck to sell reason- hand, able On the manner. other of waiver was essential finding if the was to find for on his claim because damages attachment and wrongful wrongful truck. Ob- repossession if Billings did not waive the time for viously, Leasing payment the truck installments it would not have been unlawful (being the constitutional counterclaims due were dis- concerning process or to missed) repossess attach Payne’s wages for Billings the truck. the waiver into wrong- tying instruction failure

The allowed the jury wrongful repossession ful attachment and basis, Thus, this alleged. all the award Payne for his claim to Payne well awarded damages could have in- manner. For the to sell in a commercially failure should have been told to be the jury waiver proper, struction on wrongful claims of it related only *6 wrongful repossession. 2(a)

Likewise, in is deficient paragraph the instruction similarly it if found damages alleged all the the to award by allowing jury and that Billings was one to purchase the involved agreement the to about the-sale of did not send advance notice Leasing Payne to to send notice Leasing truck. the failure of Billings Clearly, to Payne damages. before the sale does not itself entitle Payne a wrong- to establish either way Failure send notice does not any al- of had ful both which attachment or wrongful repossession, were counterclaims. entirely separate occurred. Those two ready Moreover, was damaged if there was claim that separate Payne its to notice to of Payne because failed solely give truck, the Nor intent to sell the it was not raised in pleadings. awas separ- the evidence at trial indicate that failure to notice give ate claim for damages. instruction, 2(b) the award

Under of the could jury paragraph if coupled it found damages Payne agreement purchase reasonable man- a failure to sell the truck in commercially with from a failure to if the find damages resulting ner. Even could jury manner, also sell the could not in a attachment wrongful for reason award for damages the same two counter- separate those were Again, wrongful repossession. and also of waiver upon finding claims which would arise only as a result. that Payne damaged dam- the award as his seeks to justify part In brief as award and another part wrongful for ages damages wrongful Not one repossession. instruction defined attachment or attachment or wrongful attempted them place within the issues of the case. The same can be said for the claim of damages for truck. wrongful repossession indicated,

As previously record is barren instructions defining separate elements of damages claims he suffered. At the close of the case and during settlement of jury instructions, counsel for Billings twice emphatically re- minded the court counsel that there were no instruc- tions on damages and stated that the should not be allowed to speculate on the no with guidelines. Payne’s counsel and the trial court ignored these and the case warnings, went to the jury with no guidelines.

The of the trial court to instruct the duty has been gen is recognized as one that erally inherent in the necessary court. McBride, An excellent work written for trial judges, The Art In (1969), Co.) the Jury Anderson structing states at Publishing page 16: all law states

“Today, nearly requires judge to instruct rule, Even in jury. the absence statute or to do so duty request without obvious and but it is a necessary power inherent in the court.”

McBride further the need for instructions emphasizes by (Criminal, 8) quoting California Instructions Jury at page 17: page “ * * * In the we must assume that jurors, have instructing they therefore, no of the rules of law and knowledge must be they which, on instructed all lawof under points any theory, deliberations, be involved in their the might to end that their deci- sion will be to the law and the according evidence and untinged by any and false of the law enter- private possibly opinion they they tain.”

While instruct and to instruct is necessity the to no properly a case because of greater doubt in criminal the fundamental consti- tutional the above statement serves to underline the protections, in all to instruct the jury trial function judge’s of the importance to delegated cannot be well as criminal. That duty cases—civil as counsel. case the understanding to a jury’s are crucial instructions

Jury to and, upon pro- be relied counsel cannot always unfortunately, Miller, Practice and & Federal In Wright vide instructions. those 2556, Procedure, is stated: of the trial judge the Civil duty § the jurors, of the trial to instruct judge “It is the inescapable duty case, law of the and to guide, on the applicable and fully correctly, direct, assist them toward an intelligent understanding for court factual issues involved in their search truth. The legal case the issues in the controlling must the jury properly instruct the in- there has been no for instruction or though request even added.) defective.’’ requested struction is (Emphasis Moreover, a this state to instruct statutory is in duty there R.C.M.1947, 93-5101(6), which provides: section jury, imposed by and settled the instructions have been passed upon “When court, begun, have and before the of counsel to arguments in such writing, charge the court shall in charge giving at settle- and settled such such as are passed upon instructions matters shall to them all give ment. In the court jury, charging a its necessary rendering law which it thinks information added.) verdict.” (Emphasis 17, 22, Co., (1921), 60 Mont. Ry.

In Zanos v. Great Northern 6746, 138, a predecessóNto P. Court construed Section this 93-5101, standards to at least minimum and stated there section when instructing jury: a must adhere judge trial “* * * where an instruc- It be stated as rule that may general tion, to the calls the attention of in appropriate language, presents states and fairly to be considered subject-matter determined, Revised it is sufficient. Section be questions Codes, own motion. than this the court’s does not more require case, If, than that is given a more instruction specific such one, a modifi- tender or tender it is his duty desired by party, to demand that merely is not sufficient the one It given. cation of ” * * * added.) do it. (Emphasis the court *8 51, M.R.Civ.P., Nor do we believe that Rule dilutes these minimum The rule responsibilities. provides pertinent part “* * * No party may as error the failure assign to instruct on any of law point unless offers an instruction thereon.” This rule was designed place burden on counsel to instruc present proper court; tions the trial it was not to water-down the designed mini mum duties trial court to instruct the jury. instructions,

There are other errors in the but we feel those we have mentioned are sufficient to demonstrate there was a failure to instruct the complete and a failure instruct the on the properly issues to Payne’s counter relating claims.

We vacate the judgment of the District Court and remand for a new trial consistent with this opinion.

MR. HARRISON concurs. JUSTICE HASWELL, MR. CHIEF specially concurring. JUSTICE I concur the result in this case a new trial. granting MR. DALY concurs. JUSTICE