Young v. Colyear

SHAW, J.

Action in claim and delivery for the recovery of certain household goods and furnishings. Judgment went against all of the defendants, from which defendant Colyear alone appeals.

It appears that defendant Colyear was a warehouseman, who as such was employed by his codefendants to store certain household goods and furnishings of which they claimed to be the owners. Acting at their request, he, on October 25, 1919, sent his employees with a truck to plaintiff’s residence during her absence therefrom, at which time they, under instructions from defendants Young and Appell, who had gained access to the house by unlawfully entering the same through a window and then opening a door, took the goods and chattels from plaintiff’s dwelling to Colyear’s warehouse, where they were, without the issuance of a receipt therefor, deposited in the name of Young and Appell. Immediately upon learning of the removal of the goods and on the same day that they were taken, plaintiff went to Colyear and demanded a return thereof, and, in consideration of his delivering the goods, offered to give him an indemnifying bond. He refused to surrender the goods, stating that she would have to bring an action in replevin to obtain them. Thereupon, and after notice in writing served upon him that the property had been “burglariously taken from her residence,” she instituted this action, wherein Young and Appell are made codefendants with Colyear. After Young and Appell had answered, denying all the material allegations of the com

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plaint, defendant Colyear filed an answer likewise denying that plaintiff was entitled to possession of the property, and with it a cross-complaint wherein he alleged that both plaintiff and his codefendants claimed the property, upon which as warehouseman he asserted a lien for cartage, storage, and attorney’s fees of $250 incurred in the action, offering to surrender the property to such person as the court might designate, subject to the payment to him of said alleged lien, and asked that his codefendants and plaintiff be required to interplead as to their respective rights in the property so alleged to be subordinate to his claims.

The court upon ample, though conflicting, evidence found that plaintiff was the owner and entitled to immediate possession of the larger part of the property, the value of which was fixed at $370, for which, with costs, judgment was given to plaintiff, and from which Colyear has appealed.