Appeal from Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.
Frank K. Pittman and H. B. M. Miller, for Appellant.
H. R. Cooke, for Respondents.
By the Court, Sanders, J., after stating the facts:
1. This is an action which at common law would have been called replevin. In an action of replevin the property is the subject of the action. Therefore, under the quite liberal provisions of the practice act (Rev. Laws, 5046-5052) as to counter-claims, and upon the authority
of Lapham v. Osborne, 20 Nev. 168, 18 Pac. 881, we are of the opinion that the demurrer interposed to the answer and counter-claim, the motion to strike it out, and the motion for judgment upon the pleadings were properly overruled and denied. It follows, therefore, that the court did not err in permitting respondent to testify as to how he happened to cause the repairs to be made and the replacements installed.
2. The case is divided by the trial court into two branches. One represents respondent's right to have judgment for the repairs item, and the other the respondent's right to the recovery of the possession of the tires and replacements or their value.
The court found that respondent was entitled to judgment for the repairs item because plaintiff took away the trucks, took respondent's tires and replacements, and took the benefit of the money he had expended to put them in condition for use, stating that they were bettered at Crumley's expense, and that if a man accept the benefit of another man's work and money he should pay for what he gets. It is fair to assume from this general statement taken from the court's opinion, read in connection with its decision as requested, that the court attempted to apply the rule of voluntary acceptance of services as creating a liability to pay the reasonable and fair value thereof. This rule applies, however, only where the party to whom the services are rendered is free to take their benefit or to reject it. If the services are of such nature as he has no choice but to accept them, he cannot be said to accept them voluntarily. Such acceptance, therefore, creates no liability. 2 Page on Contracts, sec. 776.
The court in its opinion states:
What should be done about the repairs item presents more difficulty, because that amount represents value or property that cannot be removed from the trucks.
This is true. The repairs, at the time plaintiff took possession of the trucks, had gone into and become a constituent part of the property. In this situation the
owner had no alternative, no choice but to accept the services. This being the fact, there was no implied promise on the part of the owner to pay for the services, nor did the law create one. Riddell v. Ventilating Co., 27 Mont. 54, 69 Pac. 241.
Upon this branch of the case we conclude the court erred in rendering judgment in favor of respondent and against appellant for the amount ...