C.I.T. Corporation v. . Watkins.

Sohenck, J. Manifestly tbe judgment of tbe court below, in so far as it relates to tbe defendant Tucker, must be reversed, since tbe answer of this defendant contains no further defense, counterclaim, or cross action. “Tbe counterclaim is substantially tbe allegation of a cause of action on tbe part of a defendant against tbe plaintiff, and it ought to be set forth with tbe same precision and certainty,” Bank v. Hill, 169 N. C., 235, and tbe court ought to disregard a counterclaim not alleged in tbe pleadings, Smith v. McGregor, 96 N. C., 101. Tbe following portion of bis Honor’s charge is made tbe basis of one of tbe plaintiff’s exceptive assignments of error, to wit: “But if you answer tbe fourth issue ‘Yes,’ then your answer to tbe fifth issue would be wbat damages you find tbe defendant sustained by reason of tbe wrongful breach of tbe contract and tbe repossession and sale of tbe ear by tbe plaintiff, and tbe measure of damages, as I have already indicated tbe defendants would be entitled to recover, would be tbe amount paid on tbe purchase price of tbe car, with legal interest, to be reduced by any additional sum you say tbe car was worth to tbe defendants while they bad tbe use of it, and tbe driving of tbe mileage they admit they did drive it.” *451 We are of tbe opinion, and so bold, tbat tbe foregoing instruction was erroneous, since tbe measure of damage upon tbe fifth issue was tbe reasonable market value of tbe Studebaker automobile at tbe time it was seized by tbe plaintiff. Tbis bas been so beld by tbis Court, Barbee v. Scoggins, 121 N. C., 135; Epley v. Credit Co., 192 N. C., 661, and is so nominated in tbe bond wbicb is written in accord witb tbe statute, C. S., 833, in tbe following words: “. . . if for any cause return cannot be bad for tbe payment to bim of sucb sum as may be recovered against tbe plaintiff for tbe value of tbe property at tbe time of tbe seizure, witb interest tbereon, as damages for sucb seizure and detention.” For tbe errors assigned there must be a New trial.