
    Electric Lighting Company of Mobile v. Rust. and Rust v. Electric Lighting Company of Mobile.
    
      Suit to Recover a Reasonable Compensation for the Use of Property Wrongfully Detained.
    
    
      1, Evidence; exclusion of deposition "because of evasive and insufficient answers. — Where the answers of a witness to cross-interrogatories, taken by deposition, are evasive and insufficient, the entire deposition should be suppressed on motion.
    2. Damages for wrongful detention of property; ulüien they arise. Where the original possession of property is under a contract and rightful, damages for wrongful detention arises only after demand made and a refusal to deliver.
    Appeal from Chancery Court of Mobile.
    Heard before the Hon. William H. Tavloe.
    This case was before the Supreme Court at the November term, 1899, having been appealed from the chancery court of Mobile, where Lewis H. Bust had brought his bill to compel the Electric Lighting Company to deliver to him certain generators and switch boards described in the bill, and to have the legal title thereto declared to be in complainant.
    The facts were these: The Mobile & Spring Hill Bailway Company executed to the Mercantile Trust Company a mortgage or deed of trust of all property of the mortgagor in its possession, and also all thereafter to be acquired pertaining to construction, maintenance and operation of said road. The Electric Lightng Company entered into an agreement with the railroad company to furnish «said company with electric power. To carry out this agreement the railroad company obtained two five hundred volt generators and placed them with the electric light company. The person selling these generators fo« the company retained the title to secure the payment of the purchase money; but this money was paid after the lighting «company «purchased the property «as hereinafter «stated.
    The electric lighting «company obtained judgment against the railroad company, and had the generators sold under execution thereon issued, and became the purchasers at the sale. Afterwards, the Mercantile Trust Company brought suit in the circuit- «court of the United States to «foreclose the mortgage. Decree was obtained, and the two generators sold with the other property of the company. Bust became the purchaser, and sued for the possession and to «settle the title. The bill was dismissed, hut on appeal the Supreme Court decided that the respondent held the property in trust, «and an order was made «directing the respondent to deliver the «same to the complainant.
    It was further ordered that the complainant recover of the respondent «a reasonable value of the use of the property during the time of detention by the respondent.
    Under this decree a reference was «had and the register’s report made, which contained an award of compensation for the detention. To this report the appellant filed exceptions on the grounds, among other things, that the register failed to sustain respondent’s objection to Corbett’s deposition, and that the’amount allowed for the reasonable use of the property detained was excessive, all of which the chancellor overruled, except those to the finding’ of the register being excessive as to the, reasonable value of the use of the property detained. Without further reference, he proceeded to ascertain and decree a smaller amount than that reported by the register.
    This action of the chancellor is assigned as error, on which a cross appeal is filed.
    The register’s report did not -show that he went into the determination of the question as to the date of the beginning -of the wrongful detention, and when damages shoul-d arise. The decree allowed compensation -from May 6th, 1896, which was the date of 'the sale of the property of the Mobile & Sprung Hill Railroad Company under the foreclosure proceedings had in the United States circuit court. There is no- evidence to show that any demand was made on appellant by appellee before suit, was filed in this cause, on June 30th, 1897.
    A-t the reference, the -complainant offered the deposition -of R. B. Corbett. The direct interrogatories were full, intending to show the reasonable rental value of the generators and switch boards during the period of detention by respondent. To these interrogatories the witness answered, in substance, that his occupation was that of an electrical engineer; that he lx-ad been engaged in the occupation of -an electrical engineer for about eight years; that he was at that time connected with Thompson, Son & Co., as electrical engineer, -manager and so on; that his firm was engaged in the business of buying and selling electrical appliances, railroad equipments, -and -second hand machinery; that he had been •with Thompson, Son & Co: four years; that his knowledge concerning renting and selling electrical machinery was extensive; that he was familiar with the type of machines in question; and that he was familiar with the selling and renting of such machines. Witness then testified- as to the 'reasonable rental values of tlie machines detained.
    The first cross-interrogatory was as follows: “To what person, or persons, -corporations or firms, have you ever rented generators and switch boards of the same kind a® those described in the second direct interrogatory? Give -the names and places -of business, or the location of each of said persons, corporations or firms, respectively, and 'als-o the -dates respectively when you made such rentings, and the length of time for which you made such rentings, respectively. To what person or persons, corporations or firms, has the firm of Thompson, Son & -Co., or any other firms or corporations with which you have been connected, ever rented generators and switch boards of the same kind -as those described in the second interrogatory? Give the names or places of business, or the locations-, of each of -such -person or persons, corporations- -or firms, respectively, and also the -dates, respectively, when they made such rentings, and the length of time for which -they made -such rentings, respectively.”
    Answer to first cross interrogatory: “During my employment with Thompson, Son & Co. they never 'rented generators or switch boards to anybody; we sell them out-iiglxt.” *
    The second cross-interrogatory was as follows: “State what- was the type of the generators -and -switch boards so rented by you, or by such other firms or -corporations in each case, .respectively. State, also, the horse power of each of said generators, respectively. State, also, the form, respectively, of the switch boards. State, also, the name® -of the respective makers -of such generators and switch boards.”
    Answer to second -cro-ss-interrogatory: “We have never rented any generators -or switch boards.”
    ■The third cross-interrogatory was a-s follows: “State also the respective values of each of said generators and switch b-oards, respectively. State als-o the respective amounts of rental derived in each case from such generators and switch boards, respectively.”
    
      Answer to third cross-interrogatory: “We have never received any rentals for such generators or switch boards, because we never rented any.”
    The defendant moved to suppress this deposition, on the ground that the answers, to the cross-interrogatories were evasive and insufficient; his motion was sustained. On complainant’s appeal to the chancellor, the register’s action was overruled.
    A decree was rendered for complainant; defendant appeals, and assigns as error the chancellor’s ruling and the rendition of the decree.
    Frederick G-. Bromberg 'and Bestor & Gray, for appellant.
    The value of the use of the property is the price it will command in the market.- — 28 Enc. Law, (1st ed.), 46; Billiard v. Slone, 8 Pac. 18.
    Where a deposition contains insufficient and evasive answers, it should be suppressed on motion. — 1 Dan. Oh. Pr. (6th ed.), 946, note 1; Wiuthrop v. Union I. Go., 30 Fed. Cas. 17,901, H. N. 4; Dodge v. Israel, 7 Fed. Oas. 3,952; Greslv Eq. Ev., 225; Harris v. Miller, 30 Ala. 221.
    The date of detention. was improperly fixed. Rule 89, Code, p. 1221; Malione v. Williams, 39 Ala. 202, 224; Rice é Wilson v. Tobias, 83 Ala. 348, 350.
    Gregory L. & H. T. Smith, contra.
    
    No demand was necessary to terminate the bailment. — Admr. v. Layes, 24 Ala. 188; 3 Am & Eng. Ency. Law, (2d ed.), 760; Cullen v. Lord, 39 la. 332; Rider v. Union Rubber (Jo., 28 N. Y. 379; 18 N. Y. 85.
    The fact that there is no market for the rental of property constitutes n'o reason why the owner, should lose and the 'wrongful detainer gain the value of the use of the property. — N. Y. and Colo. Syndicate Go. o. Fraser, 130 IT. S. 611; Brownell r. Chapman, 35 Am. St. R. '326.
   DOWDELL, J.

The appeal and cross-appeal in tin’s case are taken from the decree of the chancellor rendered on the report of the register. The report of the register was made on a reference held under the decree of this court rendered on a former appeal in this case —December 23, 1899,- wherein it was decreed as follows, viz.: “It is further ordered, adjudged and decreed that the complainant ha.ve and recover of the Electric Lighting- Company the reasonable value of the use of said property during the time of detention by the Electric Lighting Company, and the register of the chancery court of Mobile is hereby directed to hold a reference and ascertain the reasonable value of the use of said property during the time of its detention by said Electric Lighting Company, and report his findings to- the next term off the -chancery court of Mobile county.” To the report of the register made under this decree the appellant here — respondent in the court below — filed exceptions. The complainant did not except. The chancelloa- overruled ail of the respondent’s exceptions, ■save those a-s to the finding of the register being excessive as to the reasonable value of the use of the generators and switch boards. 'These exceptions he sustained, and without further reference, proceeded to ascertain and did ascertain and -decree a smaller is-um than that reported by the register, and this action of the chancellor constitutes the ground of the cross-appeal, and is the sole error assigned by the cross-appellant. As the view which we take off the -case will compel a reversal off the decree and a reference to the register, we deem it unnecessary to discuss the assignment of error on the cross-appeal.

The first assignment of error on the original -appeal that we will consider, goes to the ruling of the chancellor on the appeal taken by the complainant from the action of the register in suppressing the deposition of the complainant’s witness Corbett at the hearing on the reference. The deposition of this witness was taken under the statute on direct and cross-interrogatories filed for that purpose. • The evidence sought by the complainant in the testimony of this witness was pertinent and material — that was to show by the witness the reasonable rental value of.the generators and switch-' beards during the period off detention of the same by the respondent. To this end the direct interrogatories were full, calling for the witness’ knowledge of rental values predicated upon a familiarity with the business of renting generators and switch boards. The cross-interrogatories w’ere intended to meet the testimony sought by the questions, and to ascertain the extent of the witness’ knowledge of values and how7 obtained, authorizing and qualifying him to testify to such values. This was the defendant’s right, and a right that he should not he. deprived of by a failure of the witness to answ’er without a sufficient reason, or by an evasive answer. The purpose and value of a cross-examination in determining the weight to be accorded to the testimony of a witness, as. well as in testing his sincerity and sifting his conscience, would be lost, if he should he permitted to ignore proper questions, or make evasive answers. In this case the testimony having been taken on interrogatories, the proper manner of objecttion for a failure of the witness to answer the cross-interrogatories, was by a motion to suppress the entire deposition before entering on the trial, and this was done here. The register sustained this motion, but the chancellor on an appeal reversed this ruling. In tliis action we think the chancellor wras in error. The answers' of the witness to the direct interrogatories clearly demonstrate the evasiveness of hi>s replies to the cross-interrogatories. He show's hjr his answers to the direct interrogatories an experience and familiarity in the business of renting generators and switch boards of eight years, he says that this business experience has been extensive, and based upon this knowiedge and familiarity in the business lie testifies as to reasonable rental values. The only answer made by this witness to the first cross-interrogatory, wiiich called for particular instances of renting within the witness’ knowiedge, wans as follows: “During my employment with Thompson, Bon & 'Company -they have never rented generators or switch hoards to any one; we sell them outright.” This witness testifies on direct examination that he has been in the employment of Thompson, Bon & 'Company for tiie past four years, but be also- testifies bliat bis familiarity with the business of renting generators and switch boards extends back eight years, covering a period of four years anterior to his connection with -said mentioned firm or -company. To the second cross-interrogatory directed to an end -similar to the first, his only answer is: “We have never rented any generators nr switch boards.” Evidently referring when he e-ays ¡re, to Thompson Son & Company, and covering the period of his -connection with the company. To the third -cross, he 'answers as follows: “We have never received any rentals for such generators or switch hoards because we never rented any.” It requires no argument to demonstrate that these answers are evasive. He makes no reference to any portion -of the eight years in which he claims to have -had great familiarity and an extensive acquaintance in the business of renting generators, hut to the four years in connection with Thompson Son & Company, and in this it seems that he had no experience, in renting whatever. If the deposition were permitted to stand, the complainant might legitimately argue that the witness’ familiarity and extensive acquaintance in the business -of -renting generators, etc.was referrable to the four years when he was not connected with Thompson Bon & Company. Nor ere these cross-interrogatoriés substantially answered in any other part of the deposition. The entire deposition should have been suppressed on defendant’s motion. Harris v. Miller, 30 Ala. 221.

When this cause was before this court on a former appeal (124 Ala. 202), the decision of this court was, that relation between the complainant and respondent as to the property in question wa-s contractual. It was then adjudged that- the respondent held tiie property in trust and au order was made directing the respondent to deliver the same to the complainant. ,The original possession of the respondent of the property was under a contract and rightful. Such being the case, damages for detention could only arise after demand made and a refusal to deliver. In the present case there is no evidence of any demand prior to the institution of the suit. In the absence of evidence of any demand prior to suit damages can only be estimated from the latter date. The decree of 'reference directed the ascertainment of the reasonable value of the use of the property during the period of detention. The reasonable value of the use, may,be determined by what the property would reasonably rent for during the period of detention— the rental value in the market, or what is usual and customary. And generally.this rule is adopted where the property has a rental value, though there may be other ways of showing the reasonable value of the use, especially where, it is shown that the property wrong-. fully detained has no market or customary rental value. But in either event, the burden of proof is on the party claiming damages for detention, to prove such damages.

Under the view© above expressed, in reversing the decree of the chancery court on the original appeal, the holding of another reference will be ordered, and in addition to the directions contained in the former order, the register will be required to also ascertain and report the alternate value of such of the property as the respondent may for any cause fail to deliver up. W-hat we have said will be sufficient in holding the next reference.

As the view wdiicli we have taken and expressed in the foregoing opinion opens up the case under the order of reference, the cross-appellant can take nothing by his appeal.

Reversed and remanded.  