McCargar v. Wiley

BURNETT, J.,

Specially Concurring. — In this action for the recovery of the possession of personal property, the only thing to be determined is the right to the possession of the property, or, in case delivery thereof cannot be had, for its value together with damages for its detention.

The form of verdict in such an action is prescribed in Section 153, Or. L.:

*240 “In an action for the recovery of specific personal property, if the property have not been delivered to the plaintiff, or the defendant by his answer claim a return thereof, the jury shall assess the value of the property, if their verdict be in favor of the plaintiff, or if they find in favor of the defendant, and that he is entitled to a return thereof, and may at the same time assess the damages, if any are claimed in the complaint or answer, which the prevailing party has sustained by reason of the detention or taking and withholding such property.”

The only damages contemplated by this section is for the detention or taking of the property. It does not allude to damages for fraud in the transaction by which the property was acquired or disposed of, but relates only to the damages growing out of the violation of the custody of the property.

The form of judgment in such an action is prescribed in Section 198, Or. L.:

“In an action to recover the possession of personal property, judgment for the plaintiff may be for the possession, or the value thereof. If the property have been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property, or the value thereof, in' case a return cannot be had, and damages for taking and withholding the same.”

With these requirements of the Code as to the kind of judgment to be rendered in such an action let us recur to the nature of counterclaim defined in Section 74, Or. L.:

“The counterclaim mentioned in section 73 must be one existing in favor of a defendant, and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action:

“(1) A cause of action arising out of the contract or transaction set forth in the complaint, as the foundation of the plaintiff’s claim.

*241 “(2) In an action arising on contract, any other cause of action arising also on contract, and existing at the commencement of the action.” '

For the purposes of this case, the second subdivision relating to an action on a contract may be laid aside. The only pretense for counterclaim is in the first subdivision for a cause of action arising out of the contract or transaction set forth in the complaint. But in ‘Section 74, not only must the element described in Section 73 be new matter constituting a defense or counterclaim, but a case must also be presented where a separate judgment may be had in this particular action.

Based upon Section 153 as to the form of the verdict and upon Section 198 as to the form of the judgment the defendant urging a counterclaim must show such a case as will entitle him to the statutory judgment prescribed in an action for recovery of personal property. That is, he must show under Section 198 that he is entitled to a return of the property after it has been delivered to the plaintiff or otherwise, that he is entitled to the possession of the property. If he does not show the right to a judgment which can be rendered in that action, he does not show a counterclaim. He cannot litigate anything the disposal of which does not decide the right to the possession of the property. It is only when sued for the price that he can set up a counterclaim for damages arising from the fraud which he alleges.

Governed as this action is by special provisions of the Code, I concur with Mr. Justice Band.