
    ROBERT COCHRAN, Plaintiff and Appellant, v. CHRISTIAN GOTTWALD, and DANIEL A. MURPHY, Defendants and Respondents.
    In an action to recover the possession of personal property, where the-answer alleges that as to a portion of the property the defendants renounce all claim or interest thereto, and offers plaintiff a judgment as to that portion, with costs, &c., and upon an issue as to the rest, which was tried before a referee, the referee erred in finding that the defendants were entitled to the return of all the property mentioned in the complaint without excejjtion, or its value, fixed at five hundred and fifty-four dollars. The referee should not have included the value of the property in regard to which, by the answer, the defendant had renounced all right and interest.
    Before Curtis and Sedgwick, JJ.
    
      Decided February 7, 1876.
    
      Appeal from judgment entered on report of referee.
    The complaint was that “ the defendants have become possessed of, and wrongfully detain from, the plaintiff the following goods and chattels of the plaintiff, that is to say,” with a statement of the property ; and the demand was for a delivery of the chattels, and damages for the detention.
    The answer was a denial that the plaintiff had any property in the chattels specified in the complaint, excepting certain chattels specified in the answer, and as to that excepted property, viz : “ skeleton road wagon, sleigh, two fur robes, and one black mare, defendants renounced all claim or interest to and in them, and hereby offer plaintiff judgment as to them, with the costs and expenses of re-possessing himself of them.”
    The answer further averred that defendant Gottwald recovered judgment against one Schiefferdecker, and execution was thereon issued and delivered to defendant Murphy, who was a marshal of the city, &c., and thereupon said Murphy levied said execution upon the property mentioned in the complaint, and that such property, with the exception stated, was the property of the judgment debtor.
    The plaintiff, by the usual proceedings, had procured the delivery of the property, and the defendant demanded the return and re-delivery, with the exception as aforesaid, and damages.
    On the trial before the referee, it appeared that the plaintiff claimed as mortgagee of Schiefferdecker. The mortgage was made on condition that the mortgagor pay the plaintiff a specified sum “ on demand.” It did not appear that before the levy there had been any demand of payment. The property when levied upon was in the possession of the mortgagor.
    The referee found, that the defendant was entitled to the return of the property mentioned in the complaint, not making any exception ; and if the re-delivery could not be had, then judgment in the sum of five hundred and fifty-four dollars. In fixing the value of the property taken by the marshal, the referee included the value of one road wagon, one sleigh, and one black mare, being chattels which the answer renounced a right to.
    
      A. J. Perry, for appellant.
    
      Spencer L. Hillier, for respondents.
   By the Court.—Sedgwick, J.

There must be a new trial, because it appears that the referee has given the defendant, as part of his damages, the value of •articles which the answer admitted the plaintiff should have judgment for, and also has directed that the defendant should have judgment for the return of these .articles. If it were not for the matter of damages, the error would not, perhaps, call for anything but a correction of the judgment. It is necessary, however, to have a correct assessment of the damages upon the new trial.

It may be as well, however, to say'a word upon the merits. So far as the testimony now stands, there never had been any default on the part of the mortgagor. The indebtedness had not ever become due, and no demand for payment had been made. The mortgagor was rightfully in possession, and therefore had an interest which could be levied upon under the execution. If nothing further appears upon the new trial, the defendant will be entitled to a judgment for the return of the articles which he claims under his answer, or for their value.

As to that part of the claim which is admitted by the answer, the attention of the appellant’s counsel is called to the last clause of §344 of the Code. I do not think § 385 is to be applied. It is not, however, meant to state here what is the proper course to be taken by the plaintiff.

The counsel for the defendant claims that there is no cause of action stated in the complaint, because no demand is averred. This assumes that the complaint states an action only for wrongful detention after a lawful possession. I am inclined to think that the position is correct. The complaint says defendants “became possessed of,” not “wrongfully possessed of,” and it does not charge that the defendants “ took.” If it was necessary to give a construction to the complaint, I think it would be that the defendants came into possession lawfully. This, however, can not be considered here, as cause of affirmance, because the trial took place without this point being raised, and it might have been cured by amendment upon the trial. The complaint sufficiently avers that the goods and chattels were the property of the plaintiff. Before a new trial, the plaintiff should determine whether he goes upon an unlawful taking or an unlawful detention, or both, and have the complaint so amended that his exact claim shall appear thereon.

For the reason 'first stated, the judgment should be reversed with costs to the appellant to abide the event, the order of reference discharged, and a new trial had.

Curtis, J., concurred.  