June 18, 1935, respondent entered into a conditional sale contract with Pelton Motor Company, of Los Angeles, California, hereinafter called the seller, to purchase a used Dodge automobile. By a policy issued to the seller by appellant the faithful performance, by respondent, of the conditional sale contract was insured. One of the provisions of the conditional sale contract was that title to the automobile should not pass to respondent until all payments therefor had been made. In payment of $145 of the purchase price of the Dodge automobile respondent delivered to the seller a used Oldsmobile. The contract required respondent to pay $33.15 July 15, 1935, and $27.12 August 5, 1935, and $27.12 on the fifth of each month for seventeen months thereafter, to complete the purchase. The contract was executed in California and it was stipulated therein that the purchaser should not remove the automobile, nor permit it to be removed, from that state without the seller's written permission. Paragraph 4 was as follows:
"Possession of said property shall give Purchaser no title or interest therein and no rights except as herein provided. If Purchaser shall fully comply with the terms, covenants and conditions of this contract, and make all of the payments as herein provided, Seller agrees to deliver to Purchaser bill of sale for said property, or if provided for in the State in which this contract is executed, certificate of ownership for said property, properly endorsed. Time and each of the terms, covenants and conditions hereof are hereby declared to be of the essence of this contract, and acceptance by Seller of any payment hereunder, after the same is due, shall not constitute a waiver by him of this or any other provision of this contract."
The contract also provided that should purchaser fail or neglect to comply with any term or condition thereof the *Page 306 seller might declare the purchaser's rights terminated and immediately take possession of the automobile.
Shortly after August 5, 1935, the date on which the first $27.12 instalment was paid, respondent removed with the automobile from California to Idaho. Thereafter lie made payments to the seller as follows: $27.12 by check drawn on Rigby Branch, American National Bank, Rigby, Idaho, dated October 1, 1935; $27.12 by check drawn on said bank, dated October 5, 1935, $27.12 by check drawn on said bank, dated November 5, 1935; $27.12 by post office money order dated December 10, 1935, issued by United States post office at Cleveland, Ohio; $27.12 by check drawn on American National Bank, Idaho Falls, Idaho, dated February 14, 1936; $27.12 by check drawn on Rigby Branch, American National Bank, dated March 27, 1936. These checks and the money order were received and cashed by the seller. From the foregoing it will be seen the instalment of $27.12 which, by the terms of the contract, was due January 5, 1936, was not paid.
Respondent also forwarded to the seller a check on the Rigby Branch, American National Bank, for $27.12, dated April 20, 1936, and another, on the same bank, for $54.24, dated May 5, 1936, which bore statements showing they were for payments number 8 and numbers 9 and 10. These last mentioned checks were not presented for payment and were returned to respondent who refused to accept them.
Early in March, 1936, the seller made demand on appellant, based on asserted default by respondent in making payments provided for in the contract, and in removing the automobile from California, that it return the automobile to the seller or pay the balance due thereon according to the terms of the policy of insurance. The seller made two assignments of the conditional sale contract and the property therein described to appellant; one dated April 20, 1936, and one dated May 2, 1936.
May 6, 1936, this action, for claim and delivery, was commenced by appellant to recover possession of the automobile or $450, alleged to be the value thereof, in case delivery could not be had.
Appellant alleged, in the amended complaint, its corporate existence; sale of the automobile by the seller and purchase *Page 307 thereof by respondent; the terms of payment of the purchase price, and delivery of the automobile by the seller to respondent. These allegations were admitted by the answer. Appellant also alleged that, after signing the contract, respondent removed the automobile from California to Idaho without the knowledge or consent of the seller or of appellant or anyone else having authority to give consent to its removal; that the contract provided respondent would not remove the automobile, nor permit the removal of it, from California without the written Consent of the seller, and that the right to retain possession thereof by respondent was terminated by its removal. Appellant further alleged respondent failed and refused to make payments in accordance with the contract and thereby forfeited his right to retain possession of the automobile; that after default in payments by respondent, the seller sold and assigned the conditional sale contract and all right, title and interest in and to it to appellant and that the latter was the lawful owner of the same and entitled to all right, title and interest in the contract and said automobile. It was further alleged that respondent unlawfully withheld and detained the automobile from appellant's possession and that the reasonable market value thereof was $450.
Respondent, in his answer, by general denial, placed in issue all the allegations of the amended complaint except those above stated to have been admitted, and alleged the value of the automobile to be $800. As a further answer and cross-complaint he alleged the purchase by him of the automobile; the making of the conditional sale contract, and the delivery of the automobile by the seller to him; also that on May 6, 1936, while he was lawfully in possession of said automobile, appellant unlawfully took and carried it away and converted and disposed of it to its own use, against his will and without his consent, to his damage in the sum of $800, the reasonable value thereof, less $211.92, the amount unpaid, but not then due by the terms of the contract. As a second cause of cross-complaint he alleged, among other things, that at the time the automobile was taken from his possession it had a useable value, exclusive of the expense of operation, upkeep and depreciation, of $4 per day from May 6, 1936, *Page 308 until the time of trial, in which amount, he prayed for judgment against, appellant, in addition to the value of the automobile, less the amount remaining unpaid oil the purchase price of it, and for $500 exemplary damages.
The trial resulted in a verdict in which the value of the automobile, at the time it was taken from respondent, was found to be $650. The jury also assessed $530 as damages sustained by respondent by reason of the taking and detention of the automobile by appellant. Judgment was entered on the verdict in favor of respondent and against appellant in the sum of $1180, together with interest and costs. This appeal is from the judgment.
After the case was called for trial one of respondent's attorneys moved to amend the answer by adding thereto a paragraph which he said was "for the purpose of alleging the doctrine of estoppel." His statement to the court, in support of his motion, indicated the amendment had to do with respondent's taking the automobile out of California without the consent of the seller. However, the amendment offered made no reference to that provision of the contract nor to the removal of the automobile, but was as follows:
"Further answering said complaint, and as an affirmative defense thereto, this defendant alleges:
"That the payments made on said car on July 15, and August 5, 1935, were made in cash, lawful money of the United States; that all other payments were made by bank checks which the Pelton Motor Company and the plaintiff accepted and received, save and except the payment made December 10, 1935, which payment was made by the defendant delivering to the Pelton Motor Company a United States Post Office money order; that by reason of the Pelton Motor Company and the plaintiff accepting said bank checks, they have selected this medium of payment, and are now estopped from asserting that the medium of payment made by the defendant is not strictly in accordance with the terms of said contract, which provides that said payments must be made in gold coin of the United States of America of the present standard." *Page 309
Objection was made to the amendment on the ground it was offered too late and the objection was sustained.
No effort was made to forfeit the contract or respondent's right to possession of the automobile because the payments made, or those tendered and not accepted, were by check instead of money. Appellant's cause of action was based on respondent's default, consisting of failure to make payments, and in removing the automobile from California without the written consent of the seller.
In the course of the discussion of the proposed amendment to the answer the judge made a remark which may have misled respondent to his injury. It was, "But, in so far as this may be considered a defense or response to the question of consent to the removal of the car, the evidence was admissible under the denial." If that statement was intended as a ruling that, as the pleadings then were and now are, evidence was admissible of waiver of the seller's right to have the automobile remain in California, unless and until it gave consent in writing to its removal, or that its assignee was estopped, by its conduct, to urge a violation of the contract in that particular, it was erroneous.
The ruling on the motion to amend was correct, because it came too late. Appellant's evidence consisted of depositions of witnesses, taken in California, and it would have been in no position to proceed with the trial of an issue of waiver or estoppel. However, in view of the remark of the trial judge to the effect that evidence of consent, other than in writing, to the removal of the automobile from California was admissible under the denial, respondent's counsel may have understood that a motion for continuance in order to permit them to amend the answer and plead waiver or estoppel was unnecessary.
The record in this case shows that, although neither waiver nor estoppel was pleaded by respondent, he relied on both as defenses to the charge that he was in default in his payments and that he had removed the automobile from California without written consent. These are special defenses and evidence thereof is inadmissible under a general denial. *Page 310
"Analogous in this respect to laches, which when relied upon as a defense must be pleaded, waiver must be pleaded, and is not open as a defense under a general denial. If the waiver in question arises by reason of an estoppel, to be taken advantage of, it must be pleaded under the principle that, if there is an opportunity to plead an estoppel, it must be pleaded; but, where the waiver contains no element of estoppel, and is not asserted against an opposing litigant, there is no rule of law requiring that it shall be pleaded." (67 C. J. 308, sec. 9.)
See, also, 49 C. J. 294, secs. 361, 800, 1183; McKune v.Continental Casualty Co. (on rehearing), 28 Idaho 31,154 P. 993; Coeur d'Alene v. Spokane etc. R. R. Co., 31 Idaho 160,169 Pac, 930; Seat v. Quarles, 31 Idaho 212, 169 P. 1167; Mabee v.Continental Cas. Co., 37 Idaho 667, 219 P. 598, 37 A.L.R. 348; Neitzel v. Lawrence, 40 Idaho 26, 231 P. 423; Hess v.Hess (on petition for rehearing), 41 Idaho 2641, 239 P. 958;Jackson v. Lee. 47 Idaho 589, 277 P. 548; Nashua River PaperCo. v. Lindsay, 242 Mass. 206, 136 N.E. 358; Harrington v.Feddersen, 208 Iowa, 564, 226 N.W. 110, 66 A.L.R. 59; Evansv. Queen Ins. Co., 4 Ind. App. 198, 31 N.E. 843; Rasmussen v.Levin, 28 Colo. 448, 65 P. 94; Aronson v. Frankfurt Accident Plate Glass Ins. Co., 9 Cal. App. 473, 99 P. 537; Lord. v.Miller, 86 Wash. 436, 150 P. 631; Digen v. Schultz, 65 Mont. 190,210 P. 1057.
Respondent's counsel sought to prove by him a conversation he had with an employee of the seller to whom he made his payment August 5, 1935. The apparent purpose of the testimony sought to be introduced was to show the seller had waived the covenant in the contract against removing the automobile from California without its written consent, and that appellant, its assignee, was estopped to assert the removal as ground of forfeiture. Respondent's contention was thus stated by his counsel:
"We take the position, your Honor, that they are estopped to deny, in any event, that the witness took the car out of the state of California without their consent, because they acquiesced in the very thing lie did by accepting payments after he left, some nine or ten of them; every month they *Page 311 accepted of them, and cashed the checks and got their money on them. Now, if he went to them and made his payment, he certainly ought to be entitled to testify to what transpired by way of the conversation at that time that pertained to this transaction or this car."
The testimony was rejected, and the ruling rejecting it was correct because the pleadings did not present an issue of waiver or estoppel.
At the close of the introduction of evidence, counsel for appellant moved for a nonsuit of the causes of action stated in respondent's cross-complaint. Also, that the jury be directed to return a verdict in appellant's favor on the cause of action stated in its complaint. The ruling on these motions was as follows:
"The motion for non-suit as to punitive damages will be granted; and the motion in respect to the second cause of action of the cross-complaint, in so far as it seeks recovery for loss of the use of the car, will be denied; and the motion for non-suit generally will be denied. I believe, however, those are strictly speaking motions for a directed verdict. But, in whatever light they are properly before the court, that is the ruling."
That ruling, so far as it related to punitive damages, was correct.
The most difficult question in this case is as to whether we should direct the trial court to enter judgment in appellant's favor. The evidence supporting the allegations of the complaint is undisputed and that tending to establish waiver of the performance of the contract was inadmissible because not responsive to any issues framed by the pleadings. However, in view of the condition of this record, we believe the ends of justice will be better served by reversing the judgment and ordering a new trial. By so doing the parties will be given an opportunity to amend their pleadings so as to properly frame the issues sought to be presented at the former trial.
It should be borne in mind the causes of action stated in the cross-complaint are for conversion, not claim and delivery. Therefore, respondent's measure of damage, if he is found to *Page 312 be entitled to recover, is the value of the automobile at the time it was taken from his possession, less the amount he owed on the purchase price, together with interest at the legal rate on the net balance. (Averill M. Co. v. Vollmer-Clearwater Co.,30 Idaho 587, 166 P. 253.)
The judgment is reversed with direction to grant a new trial. Costs are awarded to appellant.
Holden and Ailshie, JJ., concur.