260 P. 869 | Cal. | 1927
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *364 This case holds the record in this jurisdiction for Rip Van Winkle litigation. The action was initiated in the lower court on the twenty-ninth day of January, 1896. A complaint in intervention was filed August 31, 1899, and various and amended pleadings were interposed. On the thirty-first day of May, 1900, a jury rendered a verdict for the plaintiffs, and judgment was entered against one of the defendants and against the intervener. Notices of appeal from the judgment were filed in July following. In May, 1902, the trial court entered an order and an amended order on motion to vacate judgment and for a new trial. Notices of appeal from these orders were filed in June, 1902. No further proceedings intervened in the lower court or here, other than the preparation and filing of the transcript on appeal on June 15, 1923.
In the "foreword" to their opening brief appellants say: "Since [the trial] many changes have taken place in California procedure, numerous and large volumes of statutes have been added to our libraries by ambitious legislators, and many decisions have been handed down interpreting our laws, old and new." With this brief, but accurate, historical review, and a plea for "indulgence" should their brief "run into more than the usual number of pages," appellants launch their attack on the almost forgotten judgment and rulings of the lower court. In justice to the attorneys now representing both appellants and respondent, it must be stated that they are appearing for the first time in the litigation, the breath of life having been infused into the case through a peremptory order of this court directing the parties to appear and show cause why the appeals should not be dismissed for want of prosecution. After a quarter of a century, mainly given over to repose, the cause stands submitted on points and authorities expeditiously prepared by present counsel.
The action is one in claim and delivery, based upon an alleged wrongful taking. It was instituted by William M. Singerly (now deceased and represented by John A. Drinkhouse, his administrator) and Louis Lammertz, as plaintiffs, against Frank Van Ness, James B. Chase, and certain *366 fictitious defendants, to recover possession of a horse named "Morello," alleged to be worth $10,000, together with $10,000 damages for the wrongful taking and detention. Pursuant to proceedings for that purpose, the sheriff took the horse from the possession of the defendant Chase. The defendant Van Ness thereupon gave a redelivery bond in the sum of $20,000, executed by Pacific Surety Company, the intervener, and now an appellant here, and the horse was delivered to Van Ness, in whose possession it remained until its death, which occurred before the case came on for trial. Van Ness answered the complaint, denying all the allegations of the plaintiffs, and alleged himself to be the sole owner of the horse and entitled to its possession. Subsequently the Pacific Surety Company, by permission of the court, filed a complaint in intervention, in which, after reciting the various steps in the litigation, and the death of the horse, it alleged that Van Ness was insolvent, and had abandoned the defense to the action, and that the Surety Company, by reason of its having given the redelivery bond, had an interest in the success of the defendant Van Ness in the action and in the defeat of the plaintiffs. It also alleged, as a further defense, a dismissal of the action as to defendant Chase, and his release and discharge by the plaintiffs from the alleged cause of action set forth in the complaint, and from all claims and demands which the plaintiffs had or claimed against him by reason of the matters alleged in their complaint. The Surety Company did not ask for a judgment or for any relief other than that it might be allowed to intervene in the action and unite and join as a defendant, and be permitted to defend against the plaintiffs. The defendant Van Ness failed to plead to the complaint in intervention, and his default was entered. The plaintiffs answered, denying the various allegations, alleging that the Surety Company was amply indemnified for any liability upon the redelivery bond, and putting in issue the allegation as to the release of Chase. In a "supplemental answer to said complaint in intervention" the plaintiffs sought a judgment against the intervener for such amount as by the verdict and judgment in that action might be found to be due from defendant Van Ness to the plaintiffs, not exceeding the amount specified in the redelivery bond. By a subsequent amendment the plaintiffs alleged that, *367 owing to the death of the horse, it could not be redelivered, and pleaded the matter contained in the "supplemental answer" as and "for a counterclaim against said Pacific Surety Company."
A general and special demurrer of the Surety Company to the answer, challenging the jurisdiction of the court to grant in that action any relief based on the bond, was overruled, and its motions to strike from the files the supplemental answer to the complaint in intervention, and the amendment thereto, were denied. In a second amended complaint, filed by plaintiffs just prior to the trial of the cause in May, 1900, Van Ness was named as the sole defendant, and the death of the plaintiff Singerly and the appointment of John A. Drinkhouse as his administrator were alleged.
Trial was had with a jury. A large amount of evidence was introduced as to the ownership and value of the horse. At the close of the testimony the intervener moved for a nonsuit as against the plaintiffs "upon their cross-complaint" against it, and asked for a directed verdict in favor of the defendant Van Ness upon various grounds. Both motions were denied. The issues were thereupon submitted to the jury, which rendered a verdict for the plaintiffs, against the defendant Van Ness for the return of the horse, or $7,500, its value, in case delivery could not be made, and for $7,500 damages for the detention. By the same verdict it also found "against the intervener, the Pacific Surety Company, a corporation, and in favor of the plaintiffs, upon the bond or undertaking set forth in its complaint in intervention herein in the sum of fifteen thousand ($15,000) dollars being the aggregate sum recovered against defendant Van Ness, it being impossible to deliver or return the stallion Morello, he having died on November 29, 1896, subsequent to the commencement of the action." The judgment entered followed the findings and verdict of the jury.
The Pacific Surety Company thereupon appealed (S.F. No. 10733) from the judgment against itself and from the judgment rendered against the defendant Van Ness. It also gave notice of its intention to move the court to vacate the verdict of the jury and the judgment of the court in favor of the plaintiffs and against the defendant Van Ness, and in favor of the plaintiffs and against itself as intervener, and to grant a new trial upon statutory grounds, *368 specifying more than 150 particular errors in the admission of evidence and in the charge to the jury alleged to have occurred at the trial, and more than forty particulars in which the evidence is alleged "to be insufficient to sustain the verdict of the jury." Nearly two years afterward, on May 1, 1902, the trial court entered the following order: "In this action the motion for a new trial having been heretofore submitted to the court for consideration and decision and the court having fully considered the same: It is ordered that the said motion be and the same is hereby granted. (Opinion filed.)" One week later, the following "amended order" was entered: "In this action it is ordered that the order of May 1, 1902, be and the same is hereby amended to read as follows: Motion of defendant Frank Van Ness for new trial be denied and motion for new trial of intervener be granted." Following the entry of these orders, the Pacific Surety Company appealed from the order of May 1st, "as amended by the order . . . denying the motion of the defendant Frank Van Ness for a new trial of said action, and from so much of said orders as may, or may be deemed to, deny the motion of said intervener on behalf of said defendant for a new trial of said action, or to deny any part of the said motion of said intervener for a new trial." Although the defendant Van Ness did not appeal, the intervener asserts that it appealed "in his behalf." The plaintiffs appealed (S.F. No. 3552) from the order of May 1st, and from that part of the amended order of May 8th granting a new trial to the intervener, Pacific Surety Company. By stipulation of the parties, and under an order of this court, all appeals are to be heard and determined on the same points and authorities covering all matters before the court for consideration. As the situation of the parties is changed in their relation to the different appeals before the court, it will be less confusing to retain the designations borne in the lower court, to wit, "plaintiffs," "defendant," and "intervener," or to refer to them by name, rather than to use the usual designations, "appellant" and "respondents."
In view of the several appeals taken, it becomes necessary to first determine the effect of the two orders entered by the trial court in its ruling on the motion for a new trial. *369
valid, the order of May 8th supersedes the order first and is the only order of the court upon the motion a new trial. (Garoutte v. Haley,
[3] The plaintiffs contend that the order of May was not the one actually made on the motion for a new and that the order of May 8th was undoubtedly made correctly state the fact. If an order entered is not the order made, the records may be corrected to make the entry speak the truth (Whitney v. Superior Court,
Plaintiffs assert that, with "two motions" for a new trial before it, the trial court merely "granted the motion," making its order void for uncertainty; that it was impossible to ascertain therefrom which motion was granted; and "it was therefore the duty of the court of its own motion to so amend its order as to definitely dispose of both motions for a new trial rather than leave it in such uncertainty as to be void on its face, for all parties to the litigation were entitled to have it definitely known whether both motions were granted, or if both were not granted, then which one was granted." The fallacy of this contention lies in the fact that there was but one motion for a new trial, that of the intervener. It alone was "submitted to the court for consideration and decision," and the court, "having fully considered the same," "granted" the motion by an order couched in plain, certain, and unambiguous language. For that reason, therefore, the contention of the plaintiffs that, if the amended order of May 8th is void, the "motions for a new trial" have not been determined and are still pending, falls of its own weakness. It therefore follows that the *371 order of May 8th, purporting to amend the order granting intervener's motion for a new trial, must be held to be a nullity, and effective for no purpose.
[4] This conclusion brings us to the consideration of the correctness and effect of the order of May 1st granting a new trial. The interest of the Pacific Surety Company in the success of the defendant Van Ness was apparent, for the judgment, if any, to be rendered against him would fix its liability upon the redelivery bond. Upon being permitted to intervene, it became a party to the action, "uniting with the defendant" in resisting the claims of the plaintiffs. As such party it was entitled to avail itself of all the procedure and remedies to which the defendant would be entitled for the purpose of defeating the action or resisting the claims of the plaintiffs, including the right of appeal from any judgment against the defendant. (Peopleex rel. Fogg v. Perris Irr. Dist.,
[6] Little need be said in affirming the action of the lower court in granting a new trial to the intervener. Plaintiffs concede that they could not have joined the surety, in an action upon the redelivery bond, with the defendant Van Ness in the action based upon his tort; yet that is what was actually attempted to be done. Although the pleading filed *372
by the intervener was, as is usual, denominated a "complaint in intervention," it was, in effect, but an answer to the complaint of the plaintiffs. It in no sense constituted the plaintiffs defendants or cross-defendants. Its allegations were deemed controverted by the plaintiffs under section 462 of the Code of Civil Procedure. (People ex rel. Fogg v. Perris Irr. Dist.,supra.) Consequently the plaintiffs were not in position to interpose a "counterclaim" against the intervener, for a counterclaim "must be one existing in favor of a defendant and against a plaintiff." (Code Civ. Proc., secs. 438, 439.) It must, in some way, qualify or defeat the judgment to which the plaintiff is otherwise entitled. (Meyer v. Quiggle,
We are now brought to a consideration of the appeal of the plaintiffs (No. 3552) from the order of May 1st granting a new trial of the action. The intervener, now the respondent, takes the position that the plaintiffs failed to establish their right to institute and maintain the action, for which reason it contends the motion was properly granted. Briefly, its contentions are that the evidence was insufficient to show a wrongful taking; that there was no proof of a demand made on the defendants before suit was begun; and that it was shown that a partnership existed between the plaintiffs and defendant Van Ness for raising, handling, and maintaining the horse, which was a part of the capital of the partnership, of which there had been no dissolution or a final accounting. As to the necessity of proof of a demand for the return of the horse, the evidence clearly indicates that the possession of the defendant Chase was but the possession of the defendant Van Ness. A demand was made on Van Ness by the attorney for the plaintiffs, and on their behalf, before the action was begun. [8] Had that not been done, it would not have availed the defendants. The defendant Van Ness in his answer set up ownership and right of possession in himself, which rendered proof of demand unnecessary. (5 Cal. Jur. 169.)
[9] We are of the view that the evidence warranted the finding of the jury and the judgment that the plaintiffs were the owners of "Morello," and that no partnership in the horse existed between them and the defendant Van Ness. Taking the documentary evidence and the oral testimony of the parties as a whole, there are some conflicts, but the purport of it is that in 1892 the horse, then two years old, was purchased by or through defendant Van Ness, who immediately transferred a half interest in the animal to plaintiff Singerly for the sum of $2,250, executing a receipt for the amount as "a bill of sale." At or about the same time, by another bill of sale, he transferred the other one-half interest in the horse to the plaintiff Lammertz for a like amount, "and $250 on said colt's first winnings." The fact is that Van Ness bought the horse with the money of the two plaintiffs, and never had or retained any interest whatever in the animal. Neither Singerly nor Lammertz knew of the interest of the other in the horse, but each supposed that Van Ness *374 and he owned "Morello." Laboring under such misapprehension the owners permitted Van Ness to train and handle the horse for racing, and later for breeding purposes, on the basis of equally sharing the expenses and dividing the profits. "Morello" was a success both as a race-horse and as a sire of colts, and Van Ness paid to each of the plaintiffs, while he was handling the horse, something like $20,000 as his share of the earnings. It appears that Van Ness was able to successfully carry out his deceit concerning the ownership of the horse until the two owners discovered the real facts shortly before the commencement of the replevin suit. There was, it is true, the arrangement between the three parties (its exact details unknown to the owners) for the racing, handling, and maintenance of the horse, but the record is devoid of any evidence to support the contention that any partnership in the ownership of the horse existed. Its earnings actually belonged to the plaintiffs. The expenses were paid out of the earnings. The arrangement was one by which Van Ness was an employee of the plaintiffs, his compensation being one-half of the net proceeds derived from the use of the horse. Under the facts here disclosed, the owners had the undoubted right to terminate the arrangement at will. They were certainly justified in doing so on learning of the true relation they bore to each other and to Van Ness, and in demanding and taking possession. The question of any accounting of the earnings of the horse cannot enter into this action to recover possession. The defendant Van Ness did not claim a partnership existed. His line of defense was that he was the sole owner of the horse, that the interest of the plaintiffs was merely that of lienholders, and that the debt secured by such liens had been paid. The evidence supports the finding of the jury and the judgment as to these contentions, and establishes that the taking was wrongful.
[10] This action being one in replevin, the plaintiffs were entitled to a judgment for the value of the horse, not as damages for its conversion, but as a substitute for and in lieu of the property, and were, in addition, entitled to a judgment for damages for the taking and withholding of the property. (Nahhas
v. Browning,
In the present case, the horse, the subject of the action, was dead when the cause came on for trial, and, of course, had no value. Notwithstanding that fact, the defendant Van Ness and his surety, the intervener Pacific Surety Company, are liable to the plaintiffs on the redelivery bond for the value of the horse. (Jacobs v. Walker,
[13] It was alleged in the complaint that the defendants unlawfully held and detained the horse from the possession of plaintiffs, to their damage in the sum of $10,000, the value of the property, "and the further sum of Ten Thousand (10,000) Dollars damages for the detention thereof." *377 There are no allegations of special damage. In addition to assessing the value of the horse at $7,500 at the time of the taking, the jury also found for the plaintiffs "for the sum of Seventy-Five hundred (7500) Dollars damages for the taking and detention." Over repeated objections of the intervener that the plaintiffs were seeking to introduce evidence outside the issues, the trial court admitted much documentary evidence and oral testimony. A compilation prepared from "Goodwin's Turf Guide," devoted to giving the results of horse-races, was admitted, from which it appeared that "Morello" had won more than $80,000 as a race-horse, and had sired many colts which, in turn, had won much money on the track. No objection was offered to the compilation instead of the "Guide," but the introduction of the evidence was objected to on the ground that it did not tend to prove any issue in the case, "there being no allegation of special damage for money lost by reason of the racing qualities of the horse." Evidence of witnesses as to the character and performance of the various colts was also objected to as not within the issues made by the pleadings, and as calling for an opinion or estimate of the value of the horse for special purposes, and for damages special in their nature and not alleged in the complaint. In connection with this evidence and testimony, the plaintiffs, by way of a stipulation, admitted that at the time of the taking in January, 1896, the horse was not used or useful for race-horse purposes because of a defect in one of his hoofs or legs, due to his breaking down on the race-track, and was at that time used only for the purpose of siring. It was also admitted that, as the plaintiffs did not own the colts, they did not claim to have been damaged by reason of any money won by the progeny. Over the same objection, that it tended to prove a special element of damage not pleaded, evidence was introduced as to the value of the use of "Morello" for breeding purposes "at the time of the supposed conversion, or during the supposed period of detention."
[14] It is, of course, the rule that such damages as do not ordinarily arise from the breach complained of, but depend upon the peculiar circumstances of the case, are special damages, which must be pleaded. (Berry v. Bank of Bakersfield,
[15] Aside from these considerations, the testimony and evidence as to the racing history of "Morello," and as to the character of the progeny and their racing ability, tended to establish the worth of the horse as a sire of colts, the only purpose for which, the admission of the plaintiffs and the intimate knowledge of all those connected with the *379
action showed, the horse was fitted at the time of the taking. It tended to fix the peculiar value of the horse as a sire of valuable racing stock. The horse undoubtedly had such a peculiar value to the plaintiffs, and the defendants had intimate and full knowledge of such fact, for Van Ness had been handling the horse for the very use that gave it that peculiar value. Such value was, therefore, "deemed to be its value" against the defendants (Civ. Code, sec.
[16] Ordinarily, in replevin, loss of use and other injuries resulting from the taking and withholding of personal property may be compensated by allowing the successful party to recover interest on the value of the property from the time of the taking to the date of the verdict. However, he is not confined to interest as damages, if he can establish the fact that the value of the use of the property of which he was deprived exceeded the interest. Where the property has such a usable value, he is entitled to recover as damages for the detention the reasonable value of such use during the period he was wrongfully deprived thereof up to the time of the rendition of the judgment. (Nahhas v. Browning, supra.) The reasons for this rule are clearly stated in California Jurisprudence (vol. 5, p. 208). By depriving the plaintiffs of the possession of "Morello," the defendant Van Ness prevented them from obtaining any earnings from him as a sire of colts. Evidence was introduced by both sides as to the physical condition of the horse, and his soundness and health at the time of the commencement of the action. While the evidence was contradictory, there is much in the record from which *380 we may conclude that the jury was warranted in finding that, at the time, the horse was in good health and physical condition, and in every way fitted for use as a stud for breeding purposes, and that he was in good condition and in the best of health at the time he was repossessed by Van Ness under the redelivery bond. The stallion was then about six years old, and there was testimony that he might reasonably be expected to be good as a sire until he was eighteen or twenty years old. The case was tried more than four years after the taking, and the evidence was to the effect that the reasonable value of his services during that period would have been from $4,500 to $6,000 per year.
[17] Evidence was admitted, over the objection of intervener, as to expenses incurred by plaintiffs in pursuit of and for locating the horse prior to the commencement of the action, including $500 for the services of an attorney in that regard. Plaintiffs admit that the admission of the testimony constituted error, but contend that "the items were small, and apparently the jury gave no consideration thereto." The testimony was that such expenses amounted to nearly $1,000, including the services of the attorney. The court instructed the jurors that they "must allow the plaintiffs as damages for the taking a fair compensation for the time and money properly expended in the pursuit of the horse." The award for damages is not segregated as to the items allowed, but is for a lump sum. Therefore, we cannot say, in view of the large amount of the special damages fixed by the jury, that the evidence was not considered. It appears to be the practice in this court not to reverse judgments improperly allowing counsel fees incurred for the "pursuit of the property," for such error alone, but to direct a modification of the judgment by deleting therefrom the amount allowed. (Hays v.Windsor,
[19] Complaint is made by the intervener about certain instructions given to the jury. It is contended that certain portions of the charge assumed a "wrongful taking" of the horse. Read in their severalty they might have that effect, but the charge as a whole correctly submitted to the jury the question whether there was a taking, and, if there was, whether it was wrongful. [20] The instruction that it required proof of the existence of a copartnership between plaintiff Singerly and defendant Van Ness to the "satisfaction" of the jury "by a preponderance of the evidence" should have been followed by a further instruction defining what is meant by preponderance of the evidence, and that such preponderance would be sufficient to justify a finding in favor of the party having the burden of proof. (Boa v. *382 San Francisco-Oakland Terminal Rys.,
The order of the trial court granting the motion for a new trial is affirmed as to the intervener Pacific Surety Company and reversed as to the defendant Van Ness.
The trial court is directed to modify the judgment appealed from by reducing the amount of the damage awarded for the wrongful detention of the horse to seven thousand ($7,000) dollars, and as thus modified the judgment shall stand affirmed as to the defendant Van Ness, to wit, for the sum of fourteen thousand five hundred ($14,500) dollars.
Curtis, J., Richards, J., Preston, J., Shenk, J., Seawell, J., and Langdon, J., concurred.
Rehearings denied.
