#### C. I. T. CORPORATION v. C. M. WATKINS and ROBERT R. TUCKER.

(Filed 18 September, 1935.)

1. Judgments F c—

A judgment may not be rendered in favor of a defendant wbo alleged no further defense, counterclaim, or cross action.

3. Claim and Delivery G a — Where defendant recovers judgment in claim and delivery, measure of damages is value of property at time of taking.

Where defendant in claim and delivery recovers judgment and the property cannot be returned to him, the measure of damages is the value of the property at the time of its seizure, and an instruction that defendant, from whom an automobile had been taken in claim and delivery by *449the assignor of a chattel mortgage thereon, would be entitled to recover, if plaintiff’s seizure of the property were wrongful, the amount paid on the purchase price of the car less the value of the use obtained from the car by defendant, is held for error. C. S., S33.

Appeal from tbe municipal court of tbe city of Greensboro-, beard *de novo*upon amended pleadings by *Alley, J.,*at December Term, 1934, of Guilpord.

New trial.

Tbis was a civil action, instituted by tbe O. I. T. Corporation, as assignee of Studebaker Sales of North Carolina, Incorporated, to recover a balance of $698.56 due on a note, secured by a conditional sale agreement on a certain Studebaker automobile, wherein resort was bad to tbe ancillary remedy of claim and delivery. C. S., 830, *et seq.*

Tbe plaintiff alleged that it was tbe assignee and bolder in due course of said note and conditional sale agreement, and that there bad been a breach of tbe agreement by tbe defendant Watkins, who was tbe maker of said note and agreement, in that be bad failed to meet tbe deferred payments as they became due, and in that be bad rendered tbe debt insecure by wrongfully disposing of said automobile to bis codefendant Tucker. Tbe automobile was taken in claim and delivery, and sold at public auction for tbe amount of tbe balance claimed by tbe plaintiff to be due.

Tbe defendants filed separate answers. Tbe defendant Watkins in bis answer admits tbe execution by him of tbe note and conditional sale agreement, and that tbe plaintiff is tbe bolder thereof in due course, but denies that be breached tbe agreement in either failing to meet tbe deferred payments or in wrongfully disposing of tbe automobile, and alleges that be did all that was required by tbe agreement to make tender of tbe deferred payments when due, and that tbe delivery of tbe automobile by him to bis codefendant Tucker was not wrongful in that it was done with tbe knowledge and consent of tbe plaintiff and its assignor ; and for a further defense and by way of counterclaim and cross action tbe defendant Watkins avers that tbe plaintiff, tbe O. I. T. Corporation, breached tbe terms of tbe conditional sale agreement in attempting to declare tbe entire amount of tbe note due under tbe acceleration clause therein, and in seizing and selling tbe automobile-under claim and delivery, and demands tbe return to him of tbe automobile, together with damages for deterioration and loss of use thereof, or, if such return cannot be bad, damage in tbe sum of $416.32.

Tbe defendant Tucker in bis answer admits that tbe -plaintiff is tbe bolder in due course of tbe note and conditional sale agreement in suit, but denies that be, Tucker, is in tbe wrongful possession of tbe automobile. Tbe defendant Tucker does not plead a further defense, counterclaim, or cross action.

*450Tbe issues submitted to tbe jury and tbe answers made thereto were as follows:

“1. Is tbe plaintiff tbe owner of and entitled to tbe immediate possession of tbe Studebaker coupe automobile, as alleged in tbe complaint? Answer: ‘Nod

“2. Wbat amount, if any, is plaintiff entitled to recover of tbe defendants? Answer: .

“3. Wbat was tbe reasonable market value of said Studebaker coupe automobile at tbe time of repossession? Answer: .

“4. Did tbe plaintiff breach its contract with tbe defendant Watkins, as alleged in tbe answer? Answer: ‘Yes.’

“5. If so, wbat amount of damages are tbe defendants entitled to recover of plaintiff? Answer: ‘$416.32, plus six per cent interest, less $50.00 for use of car.’ ”

Upon tbe foregoing verdict, tbe court adjudged “that tbe defendants, on their counterclaim in this cause, have and recover of plaintiff tbe full sum of $366.32, with interest thereon at tbe rate of six per cent per annum until paid, . . . ,” from which judgment tbe plaintiff appealed, assigning errors.

*Huger 8. King for plaintiff, appellant.*

*Younce & Younce for defendants, appellees.*

Sohenck, J.

Manifestly tbe judgment of tbe court below, in so far as it relates to tbe defendant Tucker, must be reversed, since tbe answer of this defendant contains no further defense, counterclaim, or cross action. “Tbe counterclaim is substantially tbe allegation of a cause of action on tbe part of a defendant against tbe plaintiff, and it ought to be set forth with tbe same precision and certainty,” *Bank v. Hill,*169 N. C., 235, and tbe court ought to disregard a counterclaim not alleged in tbe pleadings, *Smith v. McGregor,*96 N. C., 101.

Tbe following portion of bis Honor’s charge is made tbe basis of one of tbe plaintiff’s exceptive assignments of error, to wit: “But if you answer tbe fourth issue ‘Yes,’ then your answer to tbe fifth issue would be wbat damages you find tbe defendant sustained by reason of tbe wrongful breach of tbe contract and tbe repossession and sale of tbe ear by tbe plaintiff, and tbe measure of damages, as I have already indicated tbe defendants would be entitled to recover, would be tbe amount paid on tbe purchase price of tbe car, with legal interest, to be reduced by any additional sum you say tbe car was worth to tbe defendants while they bad tbe use of it, and tbe driving of tbe mileage they admit they did drive it.”

*451
      *We*are of tbe opinion, and so bold, tbat tbe foregoing instruction was erroneous, since tbe measure of damage upon tbe fifth issue was tbe reasonable market value of tbe Studebaker automobile at tbe time it was seized by tbe plaintiff. Tbis bas been so beld by tbis Court, *Barbee v. Scoggins,*121 N. C., 135; *Epley v. Credit Co.,*192 N. C., 661, and is so nominated in tbe bond wbicb is written in accord witb tbe statute, C. S., 833, in tbe following words: “. . . if for any cause return cannot be bad for tbe payment to bim of sucb sum as may be recovered against tbe plaintiff for tbe value of tbe property at tbe time of tbe seizure, witb interest tbereon, as damages for sucb seizure and detention.”

For tbe errors assigned there must be a

New trial.