20 Utah 118 | Utah | 1899
Lead Opinion
This was an action in replevin to obtain possession of 2178 head of sheep, or judgment for their value in the event that delivery could not be made. The plaintiff recovered judgment for 2016 head, which included 1627 delivered to him on the writ, and 889 head for which, they not having been.delivered, a money judgment was rendered in the sum of $641.85. The complaint was filed on September 20, 1897, and it was alleged, inter alia, that on August 26, 1897, at Orangeville, Emery county, Utah, the plaintiff was the owner and entitled to the possession of 2173 head of sheep of the value of $3,802.75; that the defendant, on the day last mentioned, at the county of Emery, wrongfully took said sheep from the plaintiff’s possession; and that upon demand made therefor the defendant refused to deliver possession to plaintiff and continued to withhold the same. The judgment
The allegations of ownership and right of possession of plaintiff, and unlawful taking and withholding by defendant, and demand, were all specifically denied in the answer, filed September 30, 1897. It was then set up in the answer, as an affirmative defense, that 1,900 head of the sheep belonged to the defendant, and, at the time of the taking, were in the possession of the plaintiff, under a lease made about June, 1897, to be cared for and herded by the plaintiff, at a certain rental as to wool and increase, until September, 1897, when they were to be returned to the plaintiff at Wales, San Pete county, Utah; and that when, on August 26, 1897, the defendant took the herd at Orangeville and drove them to his place at Wales, the title of the sheep was in the defendant and they belonged to him. Under these pleadings the cause was tried before the court without a jury.
We will first notice the question of jurisdiction. As the pleadings thus stood, the gravemen of the action was the wrongful taking and unlawful detention. If the taking was wrongful then the detention was unlawful from the first and continued so.
At common law the action would have been replevin in the cepit, which resembles the old common law trespass, vi et armis, and puts in issue only the taking, and in such case, the taking being wrongful no demand for a return of the property was necessary before the bringing of suit. Nor under our system is a prior demand necessary where the suit is to recover property tortiously taken. Phillips on Code Pl. sec. 492; Cobby’s Law of Replevin, sec. 8; McNally v. Connolly, 70 Cal. 3; Surles v. Sweeney, 11 Ore. 21.
The alleged invasion of the plaintiff’s rights occurred in
It follows that immediately at the time when and place where the demand and refusal occur the cause of action arises and not until then. Hence, when, as in this State, the wrongful detention is the gist of the action, the case must be tried in the county where the property is found and demand made. Whether, however, the wrongful detention, or the wrongful taking and detention, be the gist of the action, in either case, the plaintiff, in replevin, in order to -recover, must show that, at the time of bringing the action he had the right of immediate possession. 3 Bl. Com. 145; 1 Chitty Pl. 168; Phillips on Cod.
In the case at bar it does not appear, as we view the evidence before ns, that the plaintiff, at the time when this action was brought, had any title in the property or any right of possession therein, which would entitle him to maintain this action, even if the venue was properly laid in San Pete county under the amended complaint. If we are right in this, then, if it were conceded that, in the amended complaint, the plaintiff stated a case which was triable in San Pete county, and that the amendment was properly admitted, still the plaintiff has shown no right of recovery in this form of action. Whether then the cause were tried in San Pete or Emery county would make no difference as will presently be seen. For this reason we shall refrain from deciding the question whether or not the court transcended its power in authorizing the amendment to the complaint, and proceed to determine the rights of the parties as shown by the record and their contracts in evidence.
It appears that about October, 1894, the defendant leased, by contract in writing, to the plaintiff and one Barentsen 1,461 head of sheep on shares, until September 1, 1895, the lessor to receive a certain amount of the wool and increase of the herd. The sheep had the defendant’s permanent mark on them and were, to be returned to him at his place in Wales at the expiration of the lease. The next year, about September, 1895, the herd, then numbering 1,606 head, was again leased to the same parties under similar terms and conditions, until the first of September, 1896. After the expiration of this contract, there were delivered to the defendant 1,753 head, and about October 10, 1896, were leased to the plaintiff until June 15, 1897,
“This agreement made this 10th day of June, 1897, between John Edmunds, of Wales, San Pate county, Utah, party of the first part, and James C. Woodward and sons, of Orangeville, Emery county, Utah, parties of the second part.
“ Witnesseth: That the said John Edmunds in consideration of the covenants on the part of the parties of the second part ‘hereinafter contained,’ doth covenant and agree to and with the said Woodward and sons that he let and deliver to the said Woodward and sons (1900) nineteen hundred head of sheep on shares until September 1st, 1897, and the said Woodward and sons in consideration of which doth covenant and agree to and with the said John Edmunds to pay two pounds of wool per head and eight increase per hundred head, and no sheep to be disposed of from herd or herds without the consent of the said John Edmunds. Wool to be delivered at Wales at the time the sheep are shorn; 1,897 sheep tó be delivered at Wales on or before September 1, 1897, to the said John Edmunds or his agent, and am to have a fair cut of the herd or herds and in good sound condition and dipped.
“It is mutually agreed that all the covenants ‘herein contained’ shall extend to and be obligatory upon the heirs, executors, administrators and assigns of the respective parties herein named.
“James C. Woodward,
“James F. Woodward,
“John Edmunds.”
The terms of this agreement 'are quite similar to those in all the former agreements above referred to, and it will be noticed that the contract continued in force only from June 10, to September 1, 1897.
The appellant contends that the transaction evidenced by this contract was a mere bailment, and that the title to the sheep remained in him, while the respondent insists, and the court so found and held, that it was an absolute sale, and that the title to the sheep passed to the respondent on June 10, 1897, when the contract was made. We are of the opinion that the position of the respondent is not well founded, and that the court erred in finding and holding that the transaction was a sale. There are no words of sale in the instrument — no language whatever showing a transfer of title, or a provision to pay for the property. Nor does the language employed indicate that it was the intention of the parties that the transaction should be a sale of the property. On the contrary the instrument contains an express provision that no sheep should be “disposed from herd or herds without the consent of said John Edmunds,” who was the lessor. The mere facts that the lessee was to pay the rental in wool and certain portion of increase, and at the expiration of the term to deliver for the original number of sheep a' “fair cut of the herd or herds,” are not sufficient under the circumstances to show that the parties intended a sale. It is clearly shown by the evidence that the sheep delivered, by the lessor to the lessee, were all distinctly marked with the lessor’s permanent mark, the same as on previous
A similar contract was before the Supreme Court of California, in Robinson v. Haas, 40 Cal. 474. In that case it appeared that the “plaintiff owned a large number of' sheep, and contracted with O. G. Hood to keep them for a certain length of time in Santa Barbara County, upon the terms that at the end of that time, the original number of sheep should be made good to plaintiff out of the flock, and the increase, if any, divided between plaintiff and said Rood.” The contract, it seems, was for three years. Rood after delivery to him, cared for and maintained the sheep for a large portion of the time, and then in March, 1865, sold the same to Haas, the defendant, who in June following was informed that the sheep belonged to the plaintiff. After learning of the sale, the plaintiff demanded the sheep from Haas, and, upon his refusal to deliver them, brought suit and recovered judgment for the same. The appellate court in affirming the judgment, in
If, however, there should be any doubt as to the interpretation, which is thus placed upon the contract under consideration, such doubt would seem to be removed by the acts and conduct of the parties themselves, in relation thereto. The evidence clearly shows that from 1894, when the respondent first leased the herd, the sheep were about the time of the expiration of each successive lease, counted out to the appellant, marked with his permanent mark, and then again delivered over to the lessee. They were constantly treated by the parties as the lessor’s property. Again they were so treated when, on August 25, 1897, while the last lease was yet in force the respondent himself went to the appellant and again sought to lease the same sheep which he then had in his possession, under the lease hereinbefore construed, and actually signed an agreement, which was then and there drawn up for .another term, and contained practically the same terms
It is further insisted for the respondent that the agreement, drawn up, on August 25, 1897, was a valid contract, although not executed by the appellant, and that in pursuance thereof the respondent had the right to the possession of the sheep for the term therein mentioned. In answer to this contention, it is sufficient to say that, although the lease was drawn up on the day mentioned, and executed by the respondent, it was never executed by the appellant. It is apparent from the evidence that, at the time of the drawing up of the instrument, there arose, between the parties, a controversy respecting sureties; and that the respondent finally executed the instrument, left it with the appellant and went away without furnishing the appellant the security he wanted. There is nothing to show that the appellant finally waived security. What transpired subsequently indicated that he did not. He never signed the lease, but shortly after the respondent left the house, the appellant, taking another man with him, started for the herd, and, upon arriving there, took the sheep and drove them to his home.
Under these circumstances, the court is not warranted in holding that the contract, which has never been executed by one of the parties to be bound thereby, is valid.
It follows, as a necessary sequence, that the respondent,
Having reached this conclusion we do not deem it necessary to discuss any other question presented.
The judgment must be reversed, with costs, and the cause remanded with directions to the court below to proceed in accordance with this opinion.
It is so ordered.
I concur in the judgment.
Concurrence Opinion
I concur in the reversal of the judgment, but dissent from that portion of the decision relating to the question of jurisdiction.