#### Gans, appellant, *v.*Woolfolk, respondent.

Nonsuit when complaint has seveeal causes of *action*— judgment *modified.*G. brought this action to recover from W. two distinct sums of money; one for certain costs and the other for the value of certain property. *W.*admitted that he owed the costs. On the trial the court sustained W.’s motion for a nonsuit. *Held,*that the judgment of nonsuit should *not be*entered when the answer admits one cause of action in the complaint. *Held,*also, that the motion relating to the second cause of action was properly granted, and this court modified the judgment without granting a new trial, as it could administer justice to the parties.

Tendee op bulky *goods*— waiver *of tender —place- of delivery.*G. attached 600 yards of carpet, fastened to the floor of A.’s hotel, as the property of A. B. sued the officer to recover the carpet, and gave him an undertaking executed by W. for its return and the payment of any damages, “if return thereof be adjudged.” The property was then delivered to B. The officer recovered judgment against B., and W. immediately served on G. and the officer written notices that the carpet would be delivered to them at the hotel, and requested them to go there and receive it. G. and the officer refused to receive the property. *Held,*that the carpet is a bulky article which could be delivered at a convenient place designated by the parties entitled to it. *Held,*also, that W. and the other persons, who were required to tender the carpet, could select a suitable place for its delivery upon the failure of G. or the officer to designate the same, and the refusal of G. and the officer to receive the property at the place so selected was adjudged in this action a legal return thereof. *Held,*also, that the allegation of the tender of the carpet to G. by W. is established by testimony showing that G. refused to receive it under the foregoing facts.

*Evidence*— proof *of negative averment*— satisfaction *of undertaking*— value *of goods.*G. brought this action upon said undertaking, and alleged in the complaint that “ no return of the property has been had.” *Held,*that the burden of proof rests upon.G. to establish this negative averment. *Held,*also, that the condition of said undertaking would be satisfied by said tender of the carpet to G. and the officer, and the payment of the judgment recovered by the officer against B. *Held,*also, that testimony that the carpet is worthless, or has depreciated in value, is not competent.

Costs — *effect of admission of one cause of action.*The four hundred and forty-second section of the Civil Practice Act authorizes a defendant to serve upon the plaintiff an offer to allow judgment to be taken against him for a certain sum, and the plaintiff cannot recover costs if he fails to obtain a more favorable judgment. W. admitted, in his answer, that he owed the amount stated in one cause of action in G.’s complaint, and G. did not “ obtain a more favorable judgment.” *Held,*that W. did not make the offer described in the statute, and G. recovered his costs.

*459
      *Appeal from,- Third District, Lewis and Ola/rke Qownty.*

This action was tried before Wade, J., who entered the judgment of nonsuit.

W. F. SaNdebs and Chuhasero & ChadwicK, for appellants.

A new trial must be granted. The answer admits that respondents owe the appellants $184 and interest, and judgment should have been entered for this sum.

When appellants introduced the undertaking sued on, they could rest their case. The judgmeht for the return of the property was admitted, and the burden of proving that the conditions had been performed devolved upon respondents. The respondents were entitled to open and close, and there could be no non-suit. *Hwntington*v. *Oonkey,*33 Barb. 220; *Ayrault*v. *Chamberlain,*id. 229; *El/well*v. *Chamberlin,*31 N. Y. 612; *Millerd*v. *Thorn,*56 id. 405; Bouv. Inst., § 3047; *Scott*v. *Hull,*8 Conn. 303.

The appellants proved that the property had not been returned. They intended to prove by the witness, Sandford, that the carpet had been destroyed, and that respondents could not return it. The court ruled that this evidence was incompetent, and sustained the motion for a nonsuit' because appellants did not prove the matter they proposed to by this witness. [Respondents cannot take advantage of the lack of evidence when they excluded it by their objection. They are estopped by their conduct. *Thompson*v. *McKa/y,*41 Cal. 230.

The respondents made a paper offer to return the property, and no actual offer. They were trespassers in holding the property after the judgment had been -rendered for its return to appellants. They are liable upon their undertaking and cannot defeat this action by making an offer on paper to return the carpet. *Sweeney*v. *Lomme,*22 Wall. 208.

H. M. Porter and E. W. Toole, for respondent.

Appellants were required to prove that respondents did not deliver the carpet. When a right of action is grounded on a negative averment, it must be proved. 1 Greenl. Ev., § 78.

The offer to return the goods at the International Hotel was a *460compliance with the undertaking. Bony. Diet., *“*Return; ” *His-ler*v. *Carr,*34 Cal. 641.

Eyidence of waiver of tender is competent to support averment of tender. The refusal to receive tbe goods was a waiver of a perfect tender. 2 Greenl. Ev., § 603; *Slingerlcmd*v. *Morse,*8 Johns. 474; *Mu/nnv.Barnum,*24 Barb. 283; *Hazard*v. *Boring,*10 Cush. 267; *Mutual L. I. Co.*v. *Wager,*27 Barb. 367.

Appellants could not refuse to receive the carpet if it was depreciated or worn out. Compensation for the depreciation is allowed as damages. *Allen*v. *Fox,*51 N. T. 562.

The law presumes that the value of the goods was found at the date of the trial by the jury, $1,900. *Brewster*v. *SiVA/mcm,*38 N. Y. 423; *TToung*v. *Willet,*8 Bosw. 486; *Allen*v. *Fox,*51 N. Y. 562. No issue as to the value of the carpet was made in the pleadings.

The case of *Sweeney*v. *Lomme*is not applicable. After Wyttenbach tried to comply with the judgment by offering to return the goods, he ceased to be a trespasser. 2 Kent, 692; *La Farge*v. *Bickert,*5 Wend. 187.

Appellants did not ask for judgment as to the sum admitted to be due. The nonsuit was upon the issues submitted. The offer to permit judgment for $184 was not accepted by appellants, who are therefore liable for the costs. The court can modify the judgment in any particular. Civ. Pr. Act, § 378.

BlaKE, J.

The appellants commenced an action in July, 1871, against G. J. Germaine to recover $1,868.17, and procured a writ of attachment. W. L. Steele, then the sheriff of Lewis and Clarke county, levied upon the carpet in the International Hotel, in Helena, as the property of Germaine, under the writ. H. Wyttenbach brought an action against the officer to recover the possession of the property, and delivered an undertaking, executed by the respondents, with the following condition: “ Eor the prosecution of said action for the return of the property to the defendant, if return thereof be adjudged, and for the payment thereof to the defendant of such sum as may, for any cause, be recovered against the said plaintiff.” The carpet was delivered afterward to Wyttenbach, according to the provisions of the stat*461ute for the claim and delivery of personal property. Civ. Pr. Act, title 5, ch. 2. On the trial of the action between Wytten-bach and Steele, judgment was entered March 6,1873, that Steele recover the possession of the property, or $1,900 in case a delivery could not be had, and the costs, amounting to $184.90. Steele assigned this judgment and the undertaking to the appellants. The appellants obtained a judgment against Germaine November 10, 1871, for $1,929.72 damages, and $34 costs. No part of this judgment has been paid by Germaine or any person. At the time that the attachment writ was served the carpet, comprising six hundred yards, was tacked to the floor of • the hotel and never removed by the sheriff or the appellants. The building and the carpet were destroyed by Are January 9, 1874.

The appellants bring this suit against the respondents upon their undertaking to recover $1,964.62 and interest from November 10, 1871, and $184.90 anil interest from March 6, 1873, the said sums being the amounts of the judgments recovered by the appellants against Germaine, and by Steele, against Wyttenbach. The respondents admit, in their answer, that they owe the judgment for $184.90 with the interest thereon, and allege that they are ready and willing to pay the same. They deny that they owe the sum of $1,964.42, or any part thereof, and aver that, upon the rendition of the judgment against Wyttenbach, the carpet was returned and delivered to the appellants, at the hotel, in the same situation in which it was found when the officer levied thereon ; and that the appellants refused to receive the property at any place. These allegations are denied by the appellants in their replication to the answer.

Upon the trial the court sustained the motion of the respondents for a nonsuit, and judgment was rendered against the appellants for the costs of the suit. This motion should not be granted when a cause of action is proved or admitted by the pleadings. *Goulding*v. Hewitt, 2 Hill, 644; *Van Rensselaer*v. Jewett, 2 N. Y. 135. The appellants were entitled to a judgment against the respondents upon the pleadings for $184.90, and the interest thereon from March 6, 1873, and certain costs. The court erred in granting the motion relating to this cause of action, and entering the judgment against the appellants for the costs.

*462This error does not necessarily entitle the appellants to a new trial upon the issues between the parties. The complaint contains two distinct canses of action, arising in the cases of the appellants against Germaine, and Wyttenbach against Steele. The respondents admitted their liability upon one of the canses of action, and proceeded to a trial upon the other subject of controversy respecting which all the evidence was offered on the trial. A judgment of nonsuit may be entered by the court, upon the motion of the defendant, when, upon the trial, the plaintiff fails to prove a sufficient case for the jury. Civ. Pr. Act, § 184. The term “ case ” does not include the entire action stated in the complaint. Several causes of action may be united in the same complaint, and the defendant may demur to one or more of the causes and answer the remainder, and the defenses must refer to the cause of action which they are intended to answer. Id., §§ 52, 59, 12. We are of the opinion that a judgment of nonsuit may be entered when the plaintiff fails to establish by the proof one of his causes of action, and that no other cause of action is affected by the decision, and the same can be tried and submitted to the jury.

We will consider the ruling of the court in granting the non-suit upon the cause of action in which the appellants seek to recover $1,964.62 and the interest. What facts were the appellants required to prove to maintain the material allegations of the complaint ? This action is founded upon the alleged failure of the respondents to perform the conditions of their undertaking, and the complaint states that “ no return of the property has been had,” and that no part of the judgment against Wyttenbach has been paid. Upon these issues the appellants must establish the negative allegation that “no return of the property has been had,” in order to sustain this cause of action. 1 Greenl. Ev., § Y8; *Machebeuf*v. Clements, 2 Col. 36, affirmed in 92 S. C. 418. The assignment of the judgment recovered by Steele against Wytten-bach vested in the appellants the rights of the sheriff upon the undertaking made by the respondents. *Bowdoin*v. Coleman, 3 Abb. Pr. 431; *Lomme*v. Sweeney, 1 Mon. 584; S. C., 22 Wall. 208.

The evidence that was introduced by the appellants to maintain this allegation is set forth in the transcript. One of the appellants *463testified tbat tbe carpet bad never been returned to tbem, and be did not remember whether it was offered to him by tbe respondents and refused after tbe judgment was entered against Wytten-bacb. Steele testified tbat tbe property was not returned to him; tbat bis term of office as sheriff expired in December, 1871; tbat in April, 1873, one of tbe respondents came to him on Main street, Helena, between the store of tbe appellants and tbe International Hotel, at a point about seventy-five or one hundred yards from tbe hotel, and banded him a written notice surrendering tbe carpet; tbat one of tbe respondents told him that tbe carpet was rolled up at tbe hotel, tbe place where it was attached, and asked him to go there and receive it ; tbat be refused to receive tbe property, as be was out of office, and would have nothing to do with it; tbat be then went to one of tbe respondents and delivered him tbe notice, and be said be bad received a similar notice; and tbat be (Steele) bad no place of business in Helena at this time, and was living about six miles from Helena. Tbe following statement appears in tbe transcript: *“*There was no conflict in tbe proof tbat tbe tender as claimed by tbe defendants (respondents) was made immediately after tbe rendition of tbe judgment in tbe replevin suit and on tbe very day.”

In reviewing tbe action of tbe court in granting tbe nonsuit, this court will consider as proven every fact which the testimony tended to prove. *Herbert*v. King, 1 Mon. 475. What does tbe evidence tend to prove *%*Did the respondents make a legal offer to return tbe goods to Steele or tbe appellants ? Did tbe appellants waive an actual delivery of tbe property ? The evidence of tbe waiver of a tender by tbe appellants is competent and sufficient to support the allegation of a tender. *Holmes*v. Holmes, 9 N. Y. 525. Tbe carpet was a bulky and cumbersome article and tbe respondents were not required to tender it, bke money, to tbe appellants wherever found. They were obliged to deliver tbe property at some particular place. If tbe appellants neglected or refused to appoint tbe place tbe respondents bad tbe right to select it, with a reasonable regard for the convenience of tbe appellants, and there deliver tbe goods. 2 Pars, on Oont. 650 ; 2 Greenl. Ev., §§ 609, 610. In *Slingerland*v. *Morse,*8 Johns. 474, tbe court held tbat an offer to deliver bulky goods at tbe bouse where they *464were stored was sufficient, and that no other offer was requisite. Tbe articles bad been distrained at this place and left there in the first instance, and it was considered that there was a peculiar fitness in the house for the purpose of the tender. The carpet remained in the hotel during the pendency of the proceedings which have been mentioned. The respondents designated this building as a suitable place for the delivery of the property and the store of the appellants was in its neighborhood. The appellants did not name any other place and the respondents exhibited in this matter a reasonable regard for the convenience of all the parties. Under the circumstances the tender made by the respondents was sufficient, and the appellants refused to accept the carpet at their peril. The evidence shows clearly that a return of the property was had within the meaning of the law, and the appellants failed to establish this cause of action.

The appellants insist that the court erred in refusing to allow a witness to testify concerning the condition of the property from 1871 to 1873 and in 1873. It appears that this evidence was offered for the purpose of showing the actual value of the carpet at the time of the tender, and that the same was worn out and worthless. This testimony does not support any allegation in the complaint and contradicts the averments of the appellants in their pleadings. The main issue, which they presented for trial in this action, was the failure of the respondents ho return to them the property in controversy. "When it had been proved to the satisfaction of the court that the carpet had been tendered and refused, the appellants were not permitted to introduce a new fact, which is not referred to in the pleadings, and found thereon a legal obligation. The court properly excluded this testimony which could not be heard without violating the sound rule that the *allegata*and *probata*must correspond.

There is another fatal objection to the introduction of this evidence. The respondents were required to return the goods after the judgment had been entered against "Wyttenbach, if it was in them power to do so. *Caldwell*v. *Gans,*1 Mon. 570. The appellants could not impair the rights of the respondents by a refusal to accept the carpet, because it had been injured or reduced in value while it was in the possession of Wyttenbach. On the^ day the *465tender was made tbe judgment bad been rendered against "Wyt-tenbacb for $1,900,. as tbe value of tbe property, in case a delivery could not be bad. Tbe validity of tbis judgment bas not been questioned, and we might presume that tbe goods were worth $1,900 at tbe time of tbe trial according to tbe finding under tbe statute. Civ. Pr. Act, § 217. Tbe oral testimony could not be admitted to contradict tbis judgment. *Brewster*v. *Silliman,*38 N. Y. 423; *N. Y. G. Co.*v. *Flynn,*56 id. 653. In *Allen*v. *Fox,*51 id. 562, tbe court said: “ Now, suppose tbe property bas been badly depreciated, intermediate tbe wrongful taking and tbe trial, still tbe prevailing party is obliged to take it, if be can obtain it, and be is indemnified for tbe depreciation by tbe damages assessed to him.” ' Tbis doctrine is sustained by tbe cases which are cited in tbe opinion. Tbis court bas decided that a party who is entitled to tbe possession of personal property can recover tbe value of its use from tbe time be was deprived of it to tbe day of tbe trial. *Morgan*v. *Reynolds,*1 Mon. 163. Tbe case of *Douglass*v. *Douglass,*decided recently by tbe court of last resort in tbe United States, is in point upon tbe questions which have been discussed. 21 Wab. 98. Tbe goods bad been taken from tbe defendant by tbe officer under tbe writ *de retorno hdbendo*and tendered to tbe plaintiff, who refused to receive them because they were *“*much damaged and altered in condition, and of materially less value than when they were debvered to said defendant.” Mr. Justice SwayNE says: *“*Tbe seizure and tender satisfied tbe judgment of return and tbe defendant’s obligation. *Carrico*v. *Taylor,*3 Dana, 33. Neither could be revived by tbe plaintiff’s refusal to receive tbe property. Tbe refusal was of no legal consequence. If tbe defendant injured tbe property, or culpably suffered it to become injured while it was in bis possession, a remedy must be sought in some other appropriate proceeding. It cannot be bad in a suit on tbe bond.” Tbe condition of tbis bond is similar to that of tbe undertaking in tbis action. Tbe damages intended by tbis undertaking are those that were recovered by Steele against "Wyttenbaeh. Tbe respondents would have satisfied tbe condition of their undertaking by the payment of tbe judgment for $184.90 after they tendered tbe carpet to tbe appellants. *Stevens*v. *Tuite,*104 Mass. 336 ; *Hisler*v. *Carr,*34 Cal. 645.

*466Tbe appellants claim that they are entitled to a new trial on account of the error of the court in granting the nonsuit, and that we cannot distinguish its effect upon the different causes of action. This position is not tenable. Appellate courts can modify an erroneous judgment without granting a new trial when the facts are before it and justice can be done between the parties. *Atherton*v. Fowler, 46 Cal. 320. The respondents did not serve upon the appellants an offer to allow judgment to be taken against them for any' sum. Civ. Pr. Act, § 442. The costs of the action must follow the judgment for the appellants for the amount which is due to them. Civ. Pr. Act, § 546. It is therefore ordered that the judgment of the court below be modified accordingly, and that judgment be entered for the appellants for the sum of $184.-90, and interest thereon from March 6, 1813, to the day of the trial, and the costs of the suit.

*Judgment modified.*