38 Cal. 507 | Cal. | 1869
Lead Opinion
This is an action for the recovery of specific personal property, with damages for its detention.
From the allegations of the complaint, it appears that defendant came rightfully to the possession of the property, and there is no allegation of a demand upon defendant by plaintiff for its delivery, or of any refusal by defendant to deliver the property after demand made; and, for want of these specific allegations, the complaint is fatally defective, as it does not state facts sufficient to entitle the plaintiff to maintain an action.
Pleadings are to be most strictly construed against the party making them. Material allegations must be distinctly stated, and are not to be inferred from doubtful and obscure language. A defect of this character, when there is no direct evidence introduced by the plaintiff, without objection by the defendant, tending to establish a specific demand prior to suit commenced, is not cured by the verdict, and is available to defendant at any time.
Moreover, the verdict returned by the jury is informal, and not sufficiently definite and certain to serve as a basis for a judgment upon the matters in controversy, and the judgment, as entered by the Court thereon after the waiver by defendant of informality of the verdict, and consenting that a certain construction thereof should be taken as the verdict, is quite as irregular, uncertain and ineffectual as the verdict itself.
So ordered.
In my opinion the judgment ought to be reversed :
jFirst—Because it is wholly unsupported by the evidence as to the quantity, -quality or value of pipe delivered to the defendant. The plaintiff is the only witness who testified on his behalf in that respect except Sehaffner; and the former does not profess to know how much the defendant got, as he was not present when it was delivered, and the latter only testified that the defendant said there was in all about one thousand nine hundred feet. If the verdict is to be construed as the defendant agreed it should be, as “ a finding for the plaintiff as to the title and right of possession of the property described in the complaint,” there is a total absence of proof as to how much of each hind of pipe was delivered; and as the several kinds were of different values, it was impossible for the jury, from any evidence in the cause, to have ascertained its value to have been $2,200.
Secondly—The verdict is too informal to support a judgment in this form of action; and the judgment itself is plainly erroneous in omitting to specify the property of which restitution is to be made. To permit these radical defects to be cured by a stipulation of the parties as to the construction to be placed upon the verdict, would introduce a laxity of practice which would lead to the most perplexing results. In its present form, the judgment for restitution could not be enforced by any process known to the law.
I therefore concur in reversing the judgment.
Concurrence Opinion
I concur in the judgment, upon the ground that the complaint does not state facts sufficient to constitute a cause of action. There was no tortious taking of the property, as
The other points will hardly arise a second time, and I therefore find no occasion for their consideration.
Dissenting Opinion
We cannot disturb the verdict on the ground of insufficiency of the evidence to sustain it in the particulars specified in the statement.
It is claimed by appellant that the judgment must be
The complaint alleges that “plaintiff delivered the property to the defendant upon an agreement of said defendant to return the same, and the whole thereof, to plaintiff on or before the 13th of August, 1868, and defendant then agreed so to return and deliver said property to plaintiff; and plaintiff avers that said defendant has failed, refused and neglected so to return said property to plaintiff, but hath, since said 13th day of August, A, D, 1868, wrongfully kept and detained the said property, and the whole thereof, from plaintiff, and still keeps and detains the same as aforesaid.” This, it is true, is not a direct positive averment of a demand. A demand is only to be inferred from the allegation that the defendant agreed to return the property at a specified day, and that he had “refused and neglected ” so to do, but had “wrongfully kept and detained said property.” If, in view of the averments, it was necessary to make a demand, the defect would have been a ground for demurrer or objection to evidence. But the defense is a technical one, at best, and was not raised at all, in any form, in the Court below. The answer first denied the allegations of the complaint, and put in issue the ownership of the property and the agreement alleged. Then it set up an affirmative separate defense, in which it was alleged that the defendant had received the property as security for the payment of certain sums of money which it was averred had not been paid, and that he held it in his own right. This affirmative defense appears to have been the principal point in contest at the trial. I do not see why the principle adopted in Smith v. Shaw (16 Cal. 88), Bolton v. Landers (27 Cal. 104), and Ingraham v. Baldwin (9 N. Y. 46-7), should not be applicable to this case. The defendant put himself in an antagonistic position on the question of title, and rested his defense on that. Had this technical objection been made in the Court below, it could, perhaps, have been readily obviated by amendment. Although the demand is only inferrible from the other allega
It is further insisted that the verdict is so defective that no judgment can be rendered on it. Although the verdict is very informal, to my mind it is perfectly apparent what the jury intended to express. And it is, that they found for plaintiff as to the title and right of possession of the property described in the complaint; that its value was $2,200, and that plaintiff had sustained damages to the amount of $300. It cannot well mean anything else. Besides, when the verdict was read, the plaintiff, as he was entitled to do under Section 172 of the Practice Act, asked the Court to direct the jury to retire and put their verdict in the proper form. Thereupon, the defendant’s counsel waived all objection to the form, and “admitted that said verdict was a finding for plaintiff as to the title and right of possession of the property described in the complaint, assessing the value thereof at $2,200, and assessing the damages for the detention thereof at $300.”
Upon this waiver and admission the Court directed the verdict to be recorded and judgment to be entered accordingly. Clearly, this is the true interpretation of the verdict, and after this waiver and admission, and the subsequent action upon it, when the plaintiff would otherwise have had it corrected, it would be unjust now to reverse the judgment for this informality in the verdict.
The verdict, properly interpreted, finds the particulars required by Section 177 of the Practice Act, in actions, “for the recovery of specific personal property.” The judgment, however, is not in the form prescribed by Section 200. The judgment for plaintiff should be “for the possession, or the value thereof, in case a delivery cannot bo had, and damages for the detention.” The judgment reverses the order, and is that the plaintiff “ have and recover of and from said defendant, Willis Jones, the sum of twenty-two hundred
