Waterhouse-Wilcox Co. v. Betz & Mabrey

FINCH, P. J.

The defendants Betz and Mabrey, copartners, have appealed from the judgment herein in favor of plaintiff for the value of sixteen elevator doors.

The original complaint, which was filed November 18, 3922, alleged that on the ninth day of November, 1922, the plaintiff was the owner and in possession of the doors, and certain appliances, which were of the value of $2,500; that on that day the defendants, “without the consent of plaintiff, wrongfully took such goods and chattels from the possession of plaintiff”; that subsequently and prior to the

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commencement of the action the plaintiff demanded possession thereof, but that defendants refused to deliver possession thereof and “still unlawfully withhold and detain said goods and chattels from the possession of plaintiff, to its damage in the sum of $2,500.” The prayer Avas “for the recovery of the possession of said goods and chattels, or for the sum of $2,500, the value thereof, in case the delivery cannot be had, together with $500 damages and costs of suit.”

It "appears that the plaintiff claimed the immediate delivery of such property as provided in part II, title 7, chapter 2, of the Code of Civil Procedure, relating to the claim and delivery of personal property. A deputy sheriff testified that he served the “replevin papers” on the defendants; that he took possession of five of the doors, which were “in the new building being built by the John Breuner Company”; and that thereafter Betz and Mabrey filed a redelivery bond and the five doors were then delivered to them.

April 11, 1923, the plaintiff filed an amended complaint, which was substantially the same as the original complaint, except that it was therein alleged: “That the defendants, on or about the 9th day of November, 1922, . . . without the consent of plaintiff, wrongfully took and carried aivay the said goods and chattels from plaintiff, and converted and disposed of the same to their own use. . . . That plaintiff has spent otime and money in the pursuit of said property and has incurred an expense and has expended five hundred dollars in an attempt to recover said personal property.”

The answer of Betz and Mabrey was filed July 13, 1923. It is therein denied that plaintiff was at any time the owner or in possession of the property described in the complaint; that the defendants “without the consent of plaintiff, wrongfully, or otherwise, took such goods and chattels from the possession of plaintiff, and converted them to their oAvn use”; that “plaintiff demanded of these defendants possession of said goods and chattels, but to deliver possession thereof the said defendants, and each of them, have refused”; or that “defendants still unlawfully withhold . . . or detain said goods and chattels.” The answer alleges that, at all times mentioned in the complaint, defendants Betz and Mabrey “were then and there building and erect