52 Cal. 319 | Cal. | 1877
The contract between the plaintiff and W. P. Leering did not divest the plaintiff of his title to the sheep and their increase. It was an employment by plaintiff of Leering to take care of his (plaintiff’s) property for reward. (Civil Code, sec. 1965.)
The contract was for the personal services of Leering, and if he permitted the sheep to be taken from him, or abandoned them daring the term, or delivered them to a stranger without the consent of plaintiff, the latter had the right to resume possession of his property in order to preserve it. (Bobinson v. Hass, 40 Cal. 474; Story on Bailments, sec. 394; 2 Blackst. Com. 396; Bradley v. Arnold, 16 Yt. 382.)
Leering had no title to the sheep subject to seizure under attachment against him, for two reasons: 1st. The contract was an entirety, and performance on the part of Leering was a condition precedent to his right to anything under the contract. (Civil Code, sec. 1436.)
Jarboe & Harrison, for the Eespondent.
By the terms of the agreement between the plaintiff and Beering, they were tenants in common in the increase of the sheep. ( Walker v. Fitts, 24 Pick. 191: Reed v. Howard, 2 Mete. 8G; Bernal v. Ilcmious, 17 Cal. 541.)
Beering, therefore, had an interest in the sheep subject to attachment. (Brake on Attachment, sec. 248.)
By the contract between Tuohy and Beering, the former was owner of both the sheep and wool in controversy. Its language upon this point is as follows: * * * “ And that said sheep and their increase, and the wool from said sheep and their increase, shall be the property of John Tuohy.”
The compensation to Beering, as provided by the contract, was to be one-half of the net proceeds, which Tuohy should receive upon sale by him of the wool, and a portion of the increase of the sheep, to be set off to him by Tuohy,- after the latter had resumed possession as owner, and had selected from the increase a sufficient number to make up deficiencies in the original flock.
The contract would seem to have been carefully drawn, so as to constitute Tuohy the owner of all the sheep and wool, and we think that Beering has no such interest in either as would support an actual seizure under the attachment against Beering set up in the answer. The interest of the latter, if any, must be reached by his attaching creditors under a different procedure.
