No. 6,569 | Cal. | Jul 1, 1880
Lead Opinion
This is an appeal from a judgment in an action of claim and delivery, and the transcript contains nothing beyond a judgment roll. It appears by the findings that the plaintiff let to the defendant certain flocks of sheep and goats for the term of three years, from the 6th day of April, 1878, upon certain terms and con-, ditions, with which defendant fully complied. On the 6th day of May, 1878, the plaintiff commenced this action for the recovery of said sheep and goats, or for their value. The Court
In New York and Wisconsin, whose codes arc substantially the same as ours, as to the character of the judgment to be rendered in a case like this, it has been held that the true value to be assessed and recovered by the defendant is the value of his special or limited property in the goods replevied. (Searner v. Luce, 23 Barbour, 240 ; Booth v. Ableman, 20 Wis. 21" court="Wis." date_filed="1865-06-15" href="https://app.midpage.ai/document/booth-v-ableman-6599422?utm_source=webapp" opinion_id="6599422">20 Wis. 21.) There is no finding as to the value of the defendant’s special or limited property in the sheep and goats; and in the absence of any statement on motion for a new trial, or bill of exceptions, we are not advised whether there was any evidence of its value before the Court. We are satisfied, however, that the value recovered should have been the value of defendant’s special or limited property only in the sheep and goats. We discover no other error in the record.
Judgment reversed, and cause remanded for a new trial.
Myeick, J., concurred.
Concurrence Opinion
I concur in the judgment in this case, but not on the grounds stated in the opinion of Justice Shaepstein. I am of opinion that if the defendant was entitled to the return of the property, the judgment, as entered, was proper. Under such circumstances he had a right to the return of the property, (for he was then entitled to the possession of it when the action was commenced) and the value was a substitute for the property. Pico could have evaded the payment of the money by returning the property. If Martinez had collected- the money under the
The judgment should be reversed because the findings are not sustained by the evidence. The evidence shows satisfactorily that the defendant failed to comply with his contract. This contract was a continuing one from the time the defendant first received the sheep, in August and October, 1877. The contract previously made was only reduced to writing on April 6th, 1878, with some modification which does not affect this decision. The defendant, in effect, acknowledges the receipt of 1,989 sheep by the contract as reduced to writing on the 6th of April. The contract distinctly refers to 1,989 sheep, and makes no reference to 1,250, as found by the Court. (See 25th finding.)
It is stipulated, that under no pretext, shall the defendant dispose of any head of sheep, without the consent of plaintiff. It is established by uncontroverted evidence that the defendant did sell some of the sheep without the consent of the plaintiff, of which he never gave any account to him. Upon the evidence, in my opinion, judgment should have passed for plaintiff.
The article of the contract styled “ additional article ” al- ■ lows plaintiff to sell his part of the sheep, or interest, as an entirety, but not any particular sheep or any number of head of sheep. That this is the meaning is evident from the further provision of such article, that ■ defendant may be allowed to take the part or interest, as an entirety, which belongs to him. He is not allowed to take less than his entire part and dispose of them. This additional article thus does not conflict with the views taken in the first portion of this opinion.
For the reasons above given, in my opinion, the judgment should be reversed, and the cause remanded for a new trial.