
    Carl J. Hallner et al., appellees, v. Union Transfer Company, appellant.
    Filed May 24, 1907.
    No. 14,818.
    Pleading. .New matter in a reply must be responsive and defensive to new matter pleaded in tbe answer. If it is a departure therefrom it should upon motion or objection be stricken out or disregarded.
    Appeal from the district court for Saunders county: Arthur J. Evans, Judge.
    
      Reversed.
    
    
      Earl é Tinley and E. Gilkeson, for appellant.
    
      J. L. Sundean and Wilson & Brown, contra.
    
   Ames, C.

The petition alleges, in substance, that the plaintiffs delivered to the defendant for sale, for the plaintiff’s use, a steam engine, separator and stacker belonging to the latter, and that afterwards the defendant sold the engine to S. F. Negley and O. M. Anderson, for $1,100, and, with the consent of the plaintiffs, took therefor to the defendant’s own use the note of the purchasers for said sum, and by that means became indebted to the plaintiffs in that amount, and that afterwards the defendant, with the consent of the plaintiffs, sold or appropriated to its own use the separator and stacker, which ‘were of the reasonable value of $450, and became by that means indebted to the plaintiffs in the further sum of $450, making a total indebtedness of $1,550. And the plaintiffs aver that of said sum the defendant has paid to them or to their use the sum of $450 only, in principal amount, leaving an unpaid residue of $1,100, for which and interest they pray judgment. For answer, the defendant admits the receipt by it of the three articles for sale, for the use of the plaintiffs, the proceeds to be applied upon a certain debt of the latter, but denies having made sale of any of them, and denies having, by consent or otherwise, become indebted to the plaintiffs on. account of the transaction in any sum or amount, but the defendant avers that the plaintiff sold the engine to Negley and Anderson, receiving in payment therefor three notes of the purchasers for unnamed amounts and a 10 horse power engine, and that this latter mentioned engine was delivered to the defendant to be sold for the use of the plaintiffs, but has not been sold. And the defendant specifically alleges that the engine, separator and stacker still remain in its possession, subject to an agreement between the parties that the same shall be sold and the proceeds of the sale of the separator and stacker applied to the payment of certain indebtedness by the plaintiffs to the defendant, and the 10 horse powe:engine or the proceeds of its sale subject to the order the plaintiffs. For a reply, the plaintiffs admit that the first mentioned engine and separator and stacker were delivered to the defendant to be sold and the proceeds applied toward the payment of a debt of the plaintiffs, but deny that they ever received the purchase-price notes of Negley and Anderson, amounting to $700 or the 10 horse power engine, which they aver was of the value of $400, but they aver that the defendant has converted both the notes and the engine to its own use, and deify “each and every allegation of the answer inconsistent with the petition and this reply.” The plaintiffs recovered a verdict and judgment for |600, from which the defendant appealed.

Concerning the new matter pleaded in the reply, we think it must be said that, if it was intended as a charge' or tortious conversion, it is inconsistent with the petition, and ought upon motion or objection to have been stricken out or disregarded, and that, if it is treated as consistent therewith, it is immaterial. According to the petition, all articles involved in the suit became, by the agreement or consent of the parties, the property of the defendant, for the amount or value of which it became unconditionally liable to the plaintiffs, and the relation of bailor and bailee theretofore existing between the parties wholly ceased. Now, a person cannot be charged with tortious conversion of property of which he is absolute owner and of which he is at liberty to make such disposition as he sees fit, and in every system of enlightened jurisprudence a person, when sued, either civilly or criminally, has a right to be informed by a formal pleading of the precise nature of the wrong of which he is accused, and to he called upon during the progress of that litigation to respond to no other charge. Section 109 of the code provides that, when the answer contains new matter, the reply may also contain new matter constituting a defense to that contained in the answer. In this instance' the new matter pleaded in the answer amounts to no more than that the defendant denies that it has, by consent or agreement of the parties, become the owner of and absolutely liable for the price or value of the articles mentioned in the petition, and avers that it has received them as bailee, and continues liable for such of (hem as it has not already accounted for, in that capacity, and no other. It is extremely difficult to make out either from the pleadings or from the bill of exceptions what issue it was supposed by counsel for either party was being tried, and the instructions given and refused by the court are not as illuminating as could have been desired, •but the new matter in the reply, if it has any force at all, impliedly admits the version of the transaction set out in the answer, and seeks to recover for a breach of the contract of bailment, such a breach consisting of a tortious conversion of the property, and upon the trial the plaintiffs were permitted to introduce evidence of a like conversion of the remainder thereof without pleading. This was obviously a very wide departure from the case made in the petition, and ought not to have been permitted. The court, over the objection and exception of the defendant, submitted the question of conversion to the jury, and refused an instruction asked by it withdrawing that ques-1 ion from their consideration.

We think that the judgment ought to be reversed and a new trial ordered, in the hope that the issues will be reformed and the cause resubmitted in a more intelligible manner.

Jackson, C., concurs.

Calkins, C., not sitting.

By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be reversed and a new trial granted.

Reversed.  