ON Aeplication for Rehearing.
McCARTY, J.Counsel for respondent bave filed a petition for a rehearing. the grounds upon wbicb the application is based" are: (1) tbat tbis court “erred in treating the case as an equitable one;” (2) tbat tbis court “erred in remanding said cause for the purpose of making findings of fact in favor of appellant and conclusions of law giving appellant a lien upon the automobile in question.” Counsel contend “tbat, even if it be true tbat said action is an equitable one, . . , tbis court erred in reviewing the evidence and going behind the findings and decree of the trial court, for the reason that sucb .review is improper, where no dear oversight or mistake on the part of the trial court occurred.”
This is a case in wbicb an equitable defense is pleaded and equitable relief asked for by the defendant in an action at law. Nor the purpose of disposing of the questions raised by the affirmative part of the defendant’s answer, it was necessary for tbis court to redew and weigh the evidence as preserved in the bill of exceptions, and we 2 therefore treated the cause as equitable. Defendant, after setting forth in bis answer facts upon wbicb be bases bis right to a lien on the property in question, alleges “tbat *551during all the times herein mentioned by reason of the premises and lien aforesaid be bas claimed, and does now claim, the right of possession in and to said automobile under and by virtue of the provisions of section 1404 of the Compiled Laws of the state of Utah 1907.” the answer contains the following prayer: “Wherefore defendant demands judgment (a) that plaintiff recover nothing herein; (b) and that the defendant recover judgment against the plaintiff for said sum’of $281 and costs, together with interest from the 27th day of July, 1908; (e) for the possession of said automobile, and that said judgment be made a lien on said automobile and the same be ordered sold for the satisfaction of said judgment; (d) that defendant have such other and further relief in the premises as the court may deem just and equitable.” Plaintiff in its reply denies the allegations of the answer, and alleges that the automobile in question was delivered to one Spiegel to be by him repaired; that no contract for the repair of the automobile existed between plaintiff and defendant; and that defendant bad no lien or claim upon the automobile for repairs done or material furnished. TJnder the issues thus tendered, the trial court not only bad the power, but it was its duty, to make findings on the equitable issues presented by the affirmative allegations of defendant’s answer. And, as stated in the original opinion, we are clearly of the opinion that the only conclusion permissible under the evidence, which we shall later refer to somewhat in detail, is that defendant is entitled to a lien on the automobile in question for the reasonable value of the repairs made thereon by him. Section 19 of article 8 of the Constitution of Utah provides that in this state “there shall be but one form of civil action, and law and equity may be administered in the same aetiop,” Comp. Laws 1907, section 2968, provides that “the answer of the defendant may contain:. (1) A general or specific denial of each material allegation of the complaint controverted by the defendant ; . . . (2) a statement of any new matter constituting a defense or counterclaim.” Section 2969 provides, so far as material here, that “the counterclaim mentioned *552in the next preceding section must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action and arising out of one of the following causes of action: (1) Á cause of action arising out of the transaction set forth in the complaint as the foundation of plaintiff’s claim or connected with the subject of the action(Italics ours.) The subject of the action here is the automobile and the right to its possession. (Pom. Pem., section 115; Bliss, Code Pl. 373; Lapham v. Osborne, 20 Nev. 168, 18 Pac. 881; Deford v. Hutchinson, 45 Kan. 318, 25 Pac. 641, 11 L.R. A. 257.)
Mr. Pomeroy, in his discussion of this provision of the Code (Pom. Rem., section 92), says:
“There does not seem to be any limit to the use of such defenses other than is found in the very nature of equity jurisprudence itself. Whenever equity confers a right, and the right avails to defeat a legal action — that is, shows that plaintiff ought not to recover in his legal action — then the facts from which such a right arises may be set up as an equitable defense in bar. There can be no other limitation, unless we would defeat the plain intent of the statute.”
Under the liberal construction thus given the foregoing provision of the Code, it necessarily follows that a defendant in an action of ^replevin (claim and delivery) may interpose an equitable defense, and may, if the “new matter” pleaded and the facts proved warrant it, obtain equitable relief. In 34 Cyc. 1414, under the caption, “Title in or Lien of Defendant,” the rule is stated as follows:
“Property "in defendant is a good defense in an action of'replevin, and this is ordinarily true whether it be an absolute, or a special or qualified property in the goods which are the subject-matter of the litigation.”
And again, on page 1417 of the same volume, it is said:
“Since the adoption of Codes in most of the states, the doctrine of set-off and counterclaim has undergone much change. At first counterclaims were held not to be available in any action for a tort, and therefore not in replevin, which sounds in tort. But this rule has been so far modified as to allow the interposition of a counterclaim in the full sense of the Code, whether arising on contract or based *553upon tort, in an action of replevin, whenever such counterclaim is founded upon a cause of action arising out of the transaction set forth in the complaint as the foundation of plaintiff’s claim, or whenever it is connected with the subject of the action.”
The following cases also illustrate and support this doctrine: American Soda Fountain Co. v. Futrall, 73 Ark. 464, 84 S. W. 505, 108 Am. St. Rep. 64; Reardon v. Higgins, 39 Ind. App. 363, 79 N. E. 208; Cooper v. Kipp, 52 App. Div. 250, 65 N. Y. Supp. 379; Guille v. Wong Fook, 13 Or. 577, 11 Pac. 277; Ludden & Bates v. Hornsby, 45 S. C. 111-121, 22 S. E. 781; Cobbey on Replevin, section 1148.
Coming, now, to the merits of the case, Earl Dunshee, who was an officer of the plaintiff corporation, and who represented plaintiff in the several transactions out of which this controversy arose, testified that, before the repairing for which a lien is claimed was done, he took the automobile in question1 to the repair shop' of one Spiegel, and had Spiegel do some repair work on it; that he “took it up to him three or four times;” that he finally left it with Spiegel with a bequest for him to repair it, and that Spiegel promised to do so; that on one of these occasions one Merickle went with him to Spiegel’s place of business. Spiegel testified that the automobile referred to by. Dunshee was- a Reo, whereas the automobile repaired by McCurtain was a Eord. Quoting: “The car brought there by Earl Dunshee was a Reo I believe they call it. It was not the Eord car mentioned in the complaint. It was a different car entirely. Mr. Dunshee never brought a Ford car into the yard. The car spoken of by him taken into the yard was the Reo, not the Ford car mentioned in the complaint a.t all. I never did make any repairs on the Ford car prior to the time that McCurtain took it.” Merickle was called as a witness by plaintiff, and testified that he went to Spiegel’s repair shop- in company with Dunshee on the occasion referred to by Dunshee in his testimony. On cross-examination he said: “Mr. Dunshee asked Mr. Spiegel to fix up the machine. It was a Reo machine *554I think.” The court remarked: “The machine in controversy'is a Ford.” And the witness further said: “I don’t say whether Neo or Ford machine. It seems to me it was a Neo.” We think, therefore, it may be fairly said that Dunshee in giving his testimony got the Ford automobile confused with the Beo, and that the specific instructions which he claims he gave to Spiegel were with reference to the repairing of the Keo, and not the Ford machine— a separate and distinct transaction from the one under consideration.
McCurtain’s right to recover in this action does not depend, however, upon the question as to whether Spiegel’s version of the transaction or' that given by Dunshee is correct. Dunshee, however, did testify that he made no contract with McCurtain to repair the automobile in question. McCur-tain, on the other hand, claims that Dunshee did contract with him to repair the car, and that he, at Dunshee’s request, went and got the car, and took it to the repair 3 shop. The evidence shows that McCurtain did some repair work on the automobile before the contract in question was made. He testified, and his testimony is not disputed, that on one occasion 'he went with Dunshee “to bring back the machine from out near the penitentiary where the machine was stuck in the mud. It was disabled.” On the occasion when Dunshee took the automobile to the shop to have it examined for the purpose of ascertaining the extent that it needed repairing, McCurtain rode out with him in the car and made the examination, the trip consuming about two or two and a half hours’ time. The next day McCurtain, at Dunshee’s request, got the automobile, and took it to the repair shop. McCurtain testified that, when he “asked Mr. Dunshee for the job of repairing that car,” Dunshee told him that the car was at his mother’s residence, and for him to go and get it Dunshee testified: “I don’t remember Frank McCurtain coming to me and getting the machine. I don’t remember telling him it was at my_ mother’s place.” The evidence, however, without conflict, shows that the automobile was repaired by McCurtain, and that he furnished the material with which the repairs were made. And the record *555as it now stands shows that the repairs were reasonably worth $281. Dunshee testified that, after the car left the shop, it “ran apparently all right. I did not object to it on that ground.” During the time the automobile was at the shop for repairs, Dunshee called there several times to inquire about it, and on each occasion found McCurtain at work on it. Dunshee testified regarding these visits to the shop, in part, as follows: “I had conversations with the defendant with reference to the repair of the machine. When he was working on it, I naturally talked to him about it. . . . I talked to McCurtain to find out about the machine. He was the man working on it.” Spiegel, the person with whom-Dunshee claims he made the contract for the repair of the machine, testified, in part, as follows: “Mr. McCurtain brought the machine there. ... I did not send for it. It was not delivered to me by any one. It was not in my possession or control. . . . This particular building in which the machine was afterwards repaired (referring to the repairs in question) was in charge of Mr. McCurtain. He locked it up; took care of it.” J. A. Morehouse, a “helper” ■who assisted McCurtain in his work on the car, testified in part, as follows: “I heard conversations between McC'ur-tain and Earl Dunshee along about noon the first trip I made after the car went out of the bam. . . . The substance of the conversation was Mr. McCurtain had been showing Mr. Dunshee certain defects in the car, loose joints, and things like that, and I heard him, Dunshee, say that he should go ahead and fix it up. . . . He was addressing Mr. McCurtain in answer to McCurtain pointing out the defects. I think I worked there about three weeks until the evening before Mr. Dunshee asked to have the car. . . . During all those times I was working for Mr. Mc-Curtain on that car, employed by him. Yes, sir; Mr. Bergman worked with us on the car. Mr. McCurtain seemed to have all the charge, the one that was giving orders. I went to him for anything I wished to know, took my orders from him. ... No one else appeared to have any control over the direction of the work on this machine but Mr. .McC'ur-*556tain.” The evidence shows that, when Dunshee called at the shop to get the automobile after it was repaired, Mr. Mc-Ourtain started to make out the bill in Spiegel’s office. Dun-shee, being apparently in a hurry, requested’ Mr. McCurtain to go to his office, which McCurtain consented to do. They drove to Dunshee’s office in the automobile, went into the office, leaving the automobile in the street in front of the office. McCurtain then made out the bill, and handed it to Dunshee, who said that he would “put it up' to. the board of directors.” McCurtain said: “Then I will have to hold the machine until the bill is settled.” While McCurtain was making out the bill, the automobile was, by the order of Dunshee, spirited away. Regarding this incident Dunshee testified as follow's: “I was furnished with a bill of items and material furnished; yes, sir. He made that out in my office, and left it with me. When he was making out the bill the machine was. taken away at my order; yes, sir. . It is true that Breekon (the garage man) came and got the machine while I had McCurtain in my office making out his bill. No one else had ever furnished me a bill for repairs on that automobile. . . . After I saw the bill, I didn’t intend to pay it, or any part of it.” Mr. McCurtain regained possession of the automobile the day after Dun-shee had it spirited away, and notified Dunshee that he intended to hold it until the bill was paid. Dunshee then had McCurtain, who was a minor but nineteen years of age, arrested. The record does not show what disposition, if any, was made of the criminal action. Nor is it important. The matter was evidently gone into for the purpose of showing the unwarranted conduct of Dunshee in this transaction, and the extreme to which he was willing to go in his endeavor to deprive McCurtain of the possession of the automobile.
The evidence quoted and referred to clearly establishes the following facts: (1) That Dunshee left a Reo automobile at Spiegel’s for repairs, and soon thereafter came there with a Ford, the automobile in question, and that-he and McCür-tain together examined the Ford machine to determine the nature and extent of the repairs required to put it in good *557condition, and that Dunshee then left taking - the machine with him; (2) that later McOurtain, at Dunshee’s request, brought the Ford automobile to the shop for repairs; (3) that the repair work was done by McOurtain, or under his supervision and direction; (4) that McOurtain furnished the material used in making the repairs, employed, and paid for the machinists who assisted him in repairing the automobile; (5) that Dunshee frequently called at the shop, found Mc-Curtain at work on the automobile', and consulted him about it; (6) that, when Dunshee came for the automobile after it was repaired, he consulted with McOurtain, and not with Spiegel, notwithtsanding Spiegel a.t the time was present in the shop; (I) that, when McOurtain started to make out a bill in Spiegel’s shop, Dunshee requested him to come to his office, which McChrtain consented to do-, and thereupon Mc-Ourtain went with Dunshee in the automobile to Dunshee’s office; (8) that while McOurtain was making out his bill Dunshee surreptitiously got possession of the automobile and had it spirited away.
When the evidence was all in, and both sides had rested, the court, addressing counsel, said: “I will say what the court thinks of these facts, and I would like to hear from counsel as to the law on the facts as I will undertake to give which the evidence shows. The facts, as I take it from the evidence in this case, briefly stated, are: That Mr. Dunshee, acting for the plaintiff in this case, left his ear tb be repaired, as he thought, with Mr. Spiegel. That later he came there, and in conversation with Mr. McOurtain, the defendant, he said, ‘Go ahead and fix it up. Get it done as quick as you can.’ Words to that effect. Mr. McOurtain, believing that he had a right to do it, did all the work on this car, became responsible for the assistance that was given to him, employed Mr. Morehouse, and that whatever was done was done by Mr. McOurtain. And, in addition to that, the court finds that there was no delivery made by McOurtain of the car to Mr. Dunshee. Mr. Dunshee took it without any delivery being made; and, further, that there was something due, was at that time, from plaintiff in the action for the repairs to some one. *558I don’t find that there was a contract made. I think the whole contract is an implied contract.” The court in rendering judgment for plaintiff evidently proceeded upon the theory that, in order for defendant to maintain his claim of 'lien, it was necessary for him to prove by a preponderance of the evidence that he entered into an express contract with plaintiff for the repairing of the automobile, and that he had failed to make such proof. Upon no other theory can we conceive how it was possible for the trial court to arrive at the conclusion it did' in the final decision of the case. As we have stated, the evidence, when applied to the well-settled principles of law governing this class of cases, justifies but one conclusion, and that is that the defendant is entitled to a lien on the automobile for the reasonable value of the repairs mentioned; and it is immaterial whether they were made in pursuance of an express or an implied contract. The evidence, however, is all but conclusive that the repairs were made at the special instance and request of Dunshee as plaintiff’s agent.
The first impression of the writer of this opinion was that counsel for plaintiff, having induced the trial court to rule that the actual value of the repairs was, under the issues immaterial, and plaintiff having failed, because of such ruling, to introduce any evidence on this point, this court should direct the trial court to make findings on this issue in accordance with the evidence already adduced; but in deference to the opinion and judgment of his associates on this feature of the case he fully concurred in the disposition made of the case by the opinion of the Chief Justice. We are, however, clearly of the opinion that this court in remanding the cause with directions to 'the trial court to reopen the case for the purpose of permitting the parties to introduce further evidence, if they so desire, in regard to the value of the repairs made by McCurtain on the automobile, dealt as liberally with plaintiff as the record in the case warranted.
The petition for a rehearing is denied.
FRICK, C. J., concurs.