
    [Civil No. 1875.
    Filed March 10, 1922.]
    [204 Pac. 1023.]
    E. B. PERRIN, Appellant, v. WILLIAM M. HUGHES and KENNETH M. HUGHES, Appellees.
    Judgment'— No Recovery in Excess oe Prayer. — Where cross-complaint was drawn upon theory that plaintiff was liable for only one-half of the expenses of caring for cattle, and evidence was in-; troduced upon that theory, a judgment for defendants for the total amount of sueh expenses was erroneous, even though under proper pleadings they might have been entitled t® sueh a judgment.
    
      APPEAL from a judgment of the Superior Court of the County of Coconino. J. E. Jones, Judge.
    Judgment reversed and cause remanded.
    STATEMENT OF FACTS.
    The appellant, as plaintiff, sued the appellees, as defendants, for damages for breach of contract. The complaint sets forth that plaintiff, in the month of December, 1917, turned over to defendants, in Yavapai county, 942 cows, 261 calves, and 23 bulls, and that in January, 1918, the defendants agreed to look after, feed, pasture, and care for all said cattle in a good stockmanlike manner, at their own proper expenses, until about November 1, 1918, for one-half of the increase from the time defendants took possession until termination of lease, and at the end thereof to return to plaintiff an equal number in kind as received and one-half of the increase, after making the original stock whole. ' It is then alleged the defendants did not properly care for cattle, but neglected them so that a large part of them died and over 400 head of cows and 100 head of calves were never returned to plaintiff or made good to him. That on or about November 1, 1918, defendants refused further to run and care for said cattle, and wholly quit and abandoned them, • and that plaintiff thereupon took possession of what was left. His damages are placed at $34,000 for cattle lost by death and otherwise through the alleged negligence of defendants.
    The defendants in their answer denied that they had accepted said cattle under a lease contract and for one-half of the increase, and allege affirmatively that they took possession of said cattle under an agreement from plaintiff to sell them an undivided one-half thereof upon a valuation of not to exceed $45 per head for dry cows and bulls and not to exceed $65 for cows with calves. They admit that about 175 cattle died, but allege it was due to pink eye, a disease contracted by tbe cattle on account of tbeir bad condition before defendants received tbem, and not to any neglect upon their part. They deny tbe charge of abandonment and allege plaintiff forcibly took tbe cattle from tbem.
    Tbe defendants cross-complained for damages and, in addition to tbe above facts of tbe answer, alleged tbat plaintiff at tbe time of making tbe contract to sell defendants an undivided one-balf interest in tbe cattle agreed to forthwith execute to tbem a good and sufficient bill of sale thereof, and to accept from defendants in payment thereof tbeir promissory notes secured by mortgage on cattle, payable one-tbird at tbe end of three years, one-tbird at tbe end of tbe fourth year, and one-tbird at tbe end of tbe fifth year. That plaintiff refused to execute and deliver to defendants a bill of sale, although defendants offered to carry out agreement on tbeir part. Tbat possession was taken under such agreement. Tbat cattle were taken to a range held by plaintiff under permit from tbe Forestry Service of tbe United States to graze sheep, which said range was then being pastured by sheep leased by plaintiff to defendants. Tbat sheep were removed by defendants to other range, at an expense of $4,000, to place thereon said cattle. It is then alleged defendants expended in tbe care of cattle, and in preparation for tbeir care,»the sum of $6,023.51, not including tbe $4,000 necessary expenses in moving sheep as above stated, the items of expenditure being as follows: (Here is set forth an itemized statement for “corrals, barns, feed, sheds, etc., building and repairing corrals” amounting to $6,023.51.)- It is alleged tbat when plaintiff wrongfully and forcibly took tbe cattle from defendants in November, 1918, by reason of tbe care defendants bad given tbem, tbe cows bad appreciated in value $30 per bead and calves $20 per head, and that there had been an increase of 150 calves at the value of $20 per head; “that defendants’ undivided half interest in said increase amounted to $16,090, from which should be deducted one-half of the expenditures above set forth, leaving a net increase of the value of defendants’ half interest of $13,078.25 ip which defendants have suffered damages in addition to their said expenditures.” Plaintiff’s answer to cross-complaint denied all of its allegations. After hearing the evidence and the court’s instructions, the jury found the issues in favor of defendants and assessed their damages at $5,920.51, for which judgment was entered. The plaintiff appeals from the order overruling his motion for a new trial and from the judgment assigning 23 errors.
    Mr. Robert E. Morrison, Mr. X. N. Steeves) nnd-_,' Mr. Emmet T. Morrison, for Appellant.
    Mr. E. S. Clark and Mr. C. B. Wilson, for Appellees.'
   ROSS, C. J.

(After Stating the Pacts as Above.) — • The appellees offered no evidence in support of the allegations of damages contained in their cross-complaint except those enumerated in the itemized statement. No evidence was introduced in support of the allegation that the cows had appreciated in value $30 per head and calves $20 per head, or that the 150 calves of increase were of the value of $20 per head. These items of damage alleged were abandoned, as also was the item of $4,000 for removing sheep from range. The sums in the itemized statement aggregated $6,023.51. It was admitted that an item of $18 should be deducted from this total, as also an item of $85 for hides sold by defendants. Deducting these two items, the difference is the exact amount of the verdict and judgment, $5,920.51. The court instructed the jury that if they found from the evidence the defendants had proved the contract as alleged in their cross-complaint, and that the plaintiff retook the-cattle from defendants on November 1, 1918, and withheld them, such act would render “plaintiff liable in damages to defendants for such sum as you may consider will reasonably and fairly compensate the defendants for any service you may find them to have rendered and for any expenditures you may find them to have made in connection with the handling and running of said cattle, not exceeding, however, the sum of $6,005.51, and from any allowance of damages to defendants there should be deducted the sum of $85 for certain hides from these cattle of which defendants received the proceeds.” The giving of this instruction is complained of as error, because it is said the evidence does not support it. It is the contention of appellant that the appellees’ cross-complaint was drawn upon the theory that the appellant was liable for only one-half of the expenses, of running and caring for cattle during the time the appellees had possession of them, and that the evidence was introduced upon that theory. An inspection of the allegations of damages in the cross-complaint verifies this contention. The appellees therein charged themselves with one-half of the expenditures itemized as $6,023.51. Whether the appellees, under proper pleadings, would have been entitled to the total of their expenditures or not is not the question. They have not claimed all of the expenditures in caring for cattle during the time they held them, but in direct language, and presumably upon the theory that the plaintiff and defendants were alike the owners of an equal undivided interest in the cattle, charged the appellant with one-half of the overhead charges, and themselves with the other one-half. The appellees then, at most, were entitled to a verdict for one-half of $6,023.51, less the items above named, or $2,960.25. The verdict and judgment is therefore clearly excessive.

It is not necessary for us to consider whether the other assignments are well taken or not. If other errors were committed, we will assume that they will not to he repeated in a retrial.

Judgment is reversed and cause remanded, with directions that appellant be granted a new trial.

McALISTEE, and FLANIGAN, JJ., concur.  