Wirt v. Kutz

OPINION’OF THE COURT. MECHEM, J. This tras an action of replevin, tried before a jury and resulted in a verdict and judgment thereon against the appellants. 1. Appellants assign error in that the verdict is contrary to the evidence and not sustained by it. 1 This court, in the case of Candelaria v. Miera, 13 N. M. 361, laid down the rule, that a verdict of a jury will not be disturbed in this court when supported by any substantial evidence. 2 We have examined the record as to the matters pointed out by counsel-for appellants in this connection and find ample evidence to sustain the verdict, except that part of it, that gives the defendants damages as follows: “And damages in double the amount of the value of wool taken by the plaintiffs from the sheep replevined during their detention. Wool 520 lbs. 10 cts a pound.” The wool was recoverable in this action under the pleadings and the evidence or its value in the alternative, but not as damages. Our statute allows as part of the recovery in replevin “double damages for the use” of the property from the time of delivery, chap. 107, sec. 239, Laws 1907, but the property recovered bjr defendants was the sheep -and wool. The statute also gave them as incident to the recovery of the specific property double damages for its use, and 'the value of such use could only be estimated on its ordinary market price. 34 Cyc. 1563. # No evidence of that market price was introduced and it would be rather difficult to show that the property involved in the action had any use as that term is generally understood. Cobbey on Replevin, sec. 888. 2. Counsel for appellants seriously urges for our consideration a variance which he says exists between the verdict and the judgment. Our attention is called to the record, where it appears by the verdict that 5.20 pounds of wool were found to have been taken by plaintiffs from the sheep during the time they were replevined. The judgment is rendered on the basis of five hundred and twenty pounds. The clerk’s minutes, in which the verdict is placed of permanent record, contains the words: “Wool five hundred -and twentjr pounds.” The evidence was sufficient to sustain a finding that plaintiffs did shear five hundred and twenty pounds of wool from the sheep.' 3 The original of the verdict is not before us. In view of this fact, and further that from the judgment, the record of the court made by the clerk and the evidence- at the trial, it is possible to draw no other conclusion but that there is a mistake in the transcript and that the verdict was for five hundred and twenty pounds of wool. This contention in our opinion attaches too much importance to a matter of punctuation. Ewing v. Barnett, 11 Pet. (U. S.) 41; 32 Cyc. 1262. 3. This action was brought by “Emmett Wirt, Eugenio Gomez and Eelix Garcia, a copartnership doing business under the firm name -and style of AVirt, Gomez and Company.” The appellants allege error because a judgment was rendered against them as a copartnership instead of against them individually. 4 The omission of the names of the individual plaintiffs will be inserted here and the judgment corrected to correspond with the complaint. Sub-Sec. 94, Sec. 2685, C. L. 1897. ' Eor .the reason that it appears that the appellee in his answer alleged the wrongful taking by the appellants of wool, and the evidence being sufficient to sustain.- the finding by the jury that appellants had taken five hundred and twenty pounds of wool of the value of ten cents per pound, from the sheep during the time they were replevined, the judgment of the lower court will be affirmed upon the appellee filing a remittitur of $52.00, within 15 days from this date. Otherwise the judgment, will be reverséd.