The opinion of the court was delivered by
Anders, C. J.
On the 24th day of March, 1885, a judgment wras rendered in the district court of the Second judicial district of Washington Territory, holding terms at Tacoma, against appellant, who was defendant, and in favor of appellees, who -were plaintiffs, for the recovery of the possession of certain lands in Pierce county, described in the complaint in this action. Appellant, however, did not relinquish the premises to appellees, but appealed the cause [143]*143to the supreme court of the territory, which court, on the 4th clay of February, 1886, affirmed the judgment of the court below. Soon after the last mentioned date, appellant surrendered the premises in dispute to appellees. The present action was brought to recover damages for the wrongful withholding, and for use and occupation of the land and premises, during the pendency of the appeal of the former cause to the supreme court, and for the conversion, by appellant, of certain hop poles claimed by ap-pellees. On the land in controversy, there was a cultivated hop yard of about twenty-five acres, a fruit-bearing orchard, and about twenty-five acres of meadow land, besides considerable pasture. Appellant, while in possession from March, 1885, to March, 1886, gathered the hops and fruit, and cut the hay grown on the land, and disposed of the same for his own benefit, and also had the use of the pasture. The principal controversy, during the trial in the lower court, was as to the measure of plaintiff’s damages. But before entering into the discussion of that question, we will advert to some other matters which arose in the course of the trial.
It appears from the transcript that in getting a jury to try the cause, the regular panel became exhausted, and while the sheriff of the county was present in the court room, the judge ordered the United States marshal to summon a talesman from the bystanders, which he accordingly did. To this proceeding the defendant objected, and he now assigns the action of the court, in that behalf, as error. For the court to thus order a venire or summons to be served by some other person, when the duly elected and qualified sheriff was present, and, so far as the record shows, not disqualified, was to depart from the usual and regular course of practice; but, as it does not appear that appellant interposed any challenge to the juror so summoned, or that the juror was in any way unfit to try the case, we think that, if the court erred, it was error without prejudice to [144]*144the defendant. State v. Elliott, 45 Iowa, 486; Territory v. Hart, 7 Mont. 42 (14 Pac. Rep. 768, 774).
Appellant also claims that the court erred in permitting evidence to go to tbe jury as to the custom of farmers of selling hops while growing and before maturity, and that the court wrongfully allowed plaintiff to show the highest market value of hops before they were gathered or ripe, as well as afterwards. And, under the pleadings, we are of the opinion that such testimony should not have been permitted by the court. It related to a matter of special damage not set up in the pleadings; and, besides, it does not appear that appellees would or could have sold the hops before maturity if they had been in possession of the farm and hop yard themselves.
Counsel for appellant further contends that the court erred in overruling the demurrer to the amended complaint. He bases his objection to the complaint on the ground that the action should have been brought on the appeal bond of appellant, filed in the action of ejectment. The position of counsel is not tenable. The bond was given to the appellees, not to provide, them any exclusive remedy against appellant for damages, but to indemnify them against payment of costs, and secure to them their damages for being kept out of possession of their property and the satisfaction of the judgment appealed from, in case of its affirmance. Appellees were not bound to sue on the bond, but were at liberty to bring their action for use and occupation directly against the defendant Meeker alone.
In proving damages in the court below, plaintiffs were permitted to show the highest market value of the produce of the farm during the year 1885. They claimed that the measure of their damages was the highest market price of the crops taken by defendant, without any diminution on account of expense of gathering and fitting them for market or for use. On the other hand, the defendant insisted that the market price of the various crops at maturity and [145]*145ungathered, with interest thereon, was the correct measure of damages, and all he ought to pay. We do not think that, in the case as presented on the argument, either rule contended for by the respective counsel is the correct measure of damages. As before stated, the action is for use and occupation. The defendant was not a mere naked trespasser; he was holding under color of right adversely to plaintiffs. And, in that ease, the true measure of damages is the fair rental value of the premises, together with interest thereon to the time of the trial. Sedgwick and Wait on the Trial of Title to Land, 665, 666, and cases cited; Vandevoort v. Gould, 36 N. Y. 639. And the value of the crops raised and harvested by the defendant was immaterial, except so far as it might assist in determining the fair rental value of the premises; and this, no doubt, was the real object of counsel in introducing the testimony above mentioned. Where the action is for use and occupation, the crops raised and harvested by the defendant^ while in exclusive possession, belong to him, and not to the owner of the land. Page v. Fowler, 39 Cal. 412; Stockwell v. Phelps, 34 N. Y. 363; Field on Damages, 593.
Appellant concedes the highest market value of the crops to be the measure of damages if the detention of the lands was willful, which he claims, however, was not the case. The complaint in this action states that the defendant wrongfully continued to hold the exclusive possession of said premises, notwithstanding the judgment and decree of said district court, from the date of the rendition of said judgment to the month of March, 1886, when he yielded possession to plaintiffs. On the trial in the district court appellees introduced in evidence the pleadings, findings of fact and conclusions of law and judgment of the district court in the original action, as well as the opinion and judgment of the supreme court in the case. The district court in that action found that the defendant held the premises in controversy by color of title adverse to plain[146]*146tiffs, and allowed him the value of improvements be had placed on the land as a set-off against the damages for detention, but canceled the lease under which he claimed, for the reason that “ the defendant did not, at the time of the making of the lease or at the time of the making of the so-called extension of the same, so fully disclose the facts relating to said premises, to the said Mary I.
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The opinion of the court was delivered by
Anders, C. J.
On the 24th day of March, 1885, a judgment wras rendered in the district court of the Second judicial district of Washington Territory, holding terms at Tacoma, against appellant, who was defendant, and in favor of appellees, who -were plaintiffs, for the recovery of the possession of certain lands in Pierce county, described in the complaint in this action. Appellant, however, did not relinquish the premises to appellees, but appealed the cause [143]*143to the supreme court of the territory, which court, on the 4th clay of February, 1886, affirmed the judgment of the court below. Soon after the last mentioned date, appellant surrendered the premises in dispute to appellees. The present action was brought to recover damages for the wrongful withholding, and for use and occupation of the land and premises, during the pendency of the appeal of the former cause to the supreme court, and for the conversion, by appellant, of certain hop poles claimed by ap-pellees. On the land in controversy, there was a cultivated hop yard of about twenty-five acres, a fruit-bearing orchard, and about twenty-five acres of meadow land, besides considerable pasture. Appellant, while in possession from March, 1885, to March, 1886, gathered the hops and fruit, and cut the hay grown on the land, and disposed of the same for his own benefit, and also had the use of the pasture. The principal controversy, during the trial in the lower court, was as to the measure of plaintiff’s damages. But before entering into the discussion of that question, we will advert to some other matters which arose in the course of the trial.
It appears from the transcript that in getting a jury to try the cause, the regular panel became exhausted, and while the sheriff of the county was present in the court room, the judge ordered the United States marshal to summon a talesman from the bystanders, which he accordingly did. To this proceeding the defendant objected, and he now assigns the action of the court, in that behalf, as error. For the court to thus order a venire or summons to be served by some other person, when the duly elected and qualified sheriff was present, and, so far as the record shows, not disqualified, was to depart from the usual and regular course of practice; but, as it does not appear that appellant interposed any challenge to the juror so summoned, or that the juror was in any way unfit to try the case, we think that, if the court erred, it was error without prejudice to [144]*144the defendant. State v. Elliott, 45 Iowa, 486; Territory v. Hart, 7 Mont. 42 (14 Pac. Rep. 768, 774).
Appellant also claims that the court erred in permitting evidence to go to tbe jury as to the custom of farmers of selling hops while growing and before maturity, and that the court wrongfully allowed plaintiff to show the highest market value of hops before they were gathered or ripe, as well as afterwards. And, under the pleadings, we are of the opinion that such testimony should not have been permitted by the court. It related to a matter of special damage not set up in the pleadings; and, besides, it does not appear that appellees would or could have sold the hops before maturity if they had been in possession of the farm and hop yard themselves.
Counsel for appellant further contends that the court erred in overruling the demurrer to the amended complaint. He bases his objection to the complaint on the ground that the action should have been brought on the appeal bond of appellant, filed in the action of ejectment. The position of counsel is not tenable. The bond was given to the appellees, not to provide, them any exclusive remedy against appellant for damages, but to indemnify them against payment of costs, and secure to them their damages for being kept out of possession of their property and the satisfaction of the judgment appealed from, in case of its affirmance. Appellees were not bound to sue on the bond, but were at liberty to bring their action for use and occupation directly against the defendant Meeker alone.
In proving damages in the court below, plaintiffs were permitted to show the highest market value of the produce of the farm during the year 1885. They claimed that the measure of their damages was the highest market price of the crops taken by defendant, without any diminution on account of expense of gathering and fitting them for market or for use. On the other hand, the defendant insisted that the market price of the various crops at maturity and [145]*145ungathered, with interest thereon, was the correct measure of damages, and all he ought to pay. We do not think that, in the case as presented on the argument, either rule contended for by the respective counsel is the correct measure of damages. As before stated, the action is for use and occupation. The defendant was not a mere naked trespasser; he was holding under color of right adversely to plaintiffs. And, in that ease, the true measure of damages is the fair rental value of the premises, together with interest thereon to the time of the trial. Sedgwick and Wait on the Trial of Title to Land, 665, 666, and cases cited; Vandevoort v. Gould, 36 N. Y. 639. And the value of the crops raised and harvested by the defendant was immaterial, except so far as it might assist in determining the fair rental value of the premises; and this, no doubt, was the real object of counsel in introducing the testimony above mentioned. Where the action is for use and occupation, the crops raised and harvested by the defendant^ while in exclusive possession, belong to him, and not to the owner of the land. Page v. Fowler, 39 Cal. 412; Stockwell v. Phelps, 34 N. Y. 363; Field on Damages, 593.
Appellant concedes the highest market value of the crops to be the measure of damages if the detention of the lands was willful, which he claims, however, was not the case. The complaint in this action states that the defendant wrongfully continued to hold the exclusive possession of said premises, notwithstanding the judgment and decree of said district court, from the date of the rendition of said judgment to the month of March, 1886, when he yielded possession to plaintiffs. On the trial in the district court appellees introduced in evidence the pleadings, findings of fact and conclusions of law and judgment of the district court in the original action, as well as the opinion and judgment of the supreme court in the case. The district court in that action found that the defendant held the premises in controversy by color of title adverse to plain[146]*146tiffs, and allowed him the value of improvements be had placed on the land as a set-off against the damages for detention, but canceled the lease under which he claimed, for the reason that “ the defendant did not, at the time of the making of the lease or at the time of the making of the so-called extension of the same, so fully disclose the facts relating to said premises, to the said Mary I. Walker” (plaintiff’s grantor) “as to enable her to contract intelligently and prudently in reference thereto, nor had she been informed by anybody of the facts necessary to give her an intelligent and correct idea of the character and value of the land described in the so-called lease and extension; her agent, the defendant, was fully informed in regard to these matters, but she had but little or no knowledge in reference thereto, having been absent and away from said premises for a long period of time.” The court gave judgment for the possession of the premises in favor of plaintiffs, as before stated, but awarded no damages for the detention, beyond the value of the improvements, Appellees claim that this documentary evidence shows that the appellant not only wrongfully, but willfully, detained the land from them, up to the time of the judgment in the former action; and that he continued to hold in the same manner, during the time for which damages are now sought. But we think there was no evidence of willfulness in the case, and that the value of the several crops and of the pasturage, less the value of the labor bestowed thereon, is the amount of the damages, upon the theory of the case apparently adopted by counsel. That sum, in the absence of injury to the premises, is all appellees lost by being out of possession, and they should receive no more than a just compensation for the damages suffered.
The defendant requested the court below to instruct the j nry as follows:
“ First: Plaintiffs are entitled to recover fair compensation for whatever actual damages they have suffered by reason of the acts proved in evidence, and complained of in [147]*147their complaint. Second: They are not entitled to recover anything in excess of such fair compensation. Third: You will decide all the issues in this case according to the weight of evidence. Fourth: The plaintiffs are not entitled to recover any sum whatever, unless the fair preponderance of the evidence shows that a sum as large as that is a just and fair compensation to them for the damage actually suffered by them and complained of in the complaint. Fifth: The amount of your verdict for the plaintiffs will be based upon the evidence, and will consist of the aggregate of the following items: 1. The value of the hay crop at the date proper to harvest it, and as it stood in the field unharvested, together with interest upon that value from that date to the day of your verdict. 2. The value of the fruit crop at the date proper to gather it, and as it hung on the trees ungathered, together with interest thereon from that date to the day of your verdict. 3. The value of the hop crop at the date proper to pick it, and as it hung on the vines unpicked, together with interest on that value from that date to the day of your verdict. 4. The value of the pasturage for each month of the pasturing season, together with interest on each month’s value from the close of the month to the date of your verdict. 5. The value of the hop poles of the plaintiff, removed by the defendant, at the time and place of removal, together with interest thereon from such time to the day of your verdict. 6. There is no evidence in this case that defendant willfully, wantonly, or maliciously, has. withholden from Mary I. Walker, or from plaintiffs, or any of them, possession of the lands described in the complaint. 7. There is no evidence before you that Mr. Ezra Meeker acted otherwise than in actual good faith, under color of title, and in an honest belief that he was in the right in holding possession of the premises described in the complaint pending the appeal to the supreme court. 8. In the absence of willfulness or malice or actual bad faith on Mr. Meeker’s part in using and occupying the premises, pending the appeal to the supreme court, the plaintiffs have no right to claim or recover in this action, on account of the crops taken, a sum as damages which shall include more than the actual value of the crops at the time when taken,together with interest from that time after deducting all that part of such value which is due to the labor and expense of getting and harvesting the crops.”
[148]*148Tbe court refused to give any of these instructions, and failed to give the same or the substance thereof in any other form or language. They were as favorable to the plaintiffs, under the circumstances of the case, as the law would warrant, and should have been given, especially the last instruction asked. Smith v. Chicago, etc., R. R. Co., 38 Iowa, 518; Chamberlain v. Collinson, 45 Iowa, 429; McLean County Coal Co. v. Long, 81 Ill. 359; Weymouth v. Chicago & Northwestern R. R. Co., 17 Wis. 550; Forsyth v. Wells, 41 Pa. St. 291; Maye v. Yappen, 23 Cal. 306; Ege v. Kills, 84 Pa. St. 333; Stockbridge Iron Co. v. Cone Iron Works, 102 Mass. 80.
The court of its own motion instructed the jury upon the law of the case. The defendant’s exception to the charge is “to the giving of which and to the giving of each part thereof.” He did not point out the specific parts of the same to which exception was taken, otherwise than as stated above. The instruction, as given, consisted of a series of separate propositions. And as we cannot say that no part, of the charge was sound, the exception thereto is insufficient. Beaver v. Taylor, 93 U. S. 46; Code of Washington, § 221, subdivision 6; Ayrault v. Pacific Bank, 47 N. Y. 570.
The jury returned the following verdict: “ We, the jury in the above entitled cause, find for the plaintiffs, and assess the damages at 13,050 and legal interest.” The verdict was bad for uncertainty, and would not sustain a judgment for any sum whatever, except by treating the words “ and legal interest ” as surplusage. It was the exclusive province of the jury to fix the exact amount of damages by their verdict; and it was error to include in the judgment $600 more than was found by the jury.
For the errors above indicated, the judgment of the court below must be reversed, and the cause remanded for a new trial in accordance with this opinion; and it is so ordered.
DuNbaR, Scott and Stiles, J-J., concur.
Hoyt, J., not sitting.