Alsaga v. Hart

HART, J.

The action here is in claim and delivery. Judgment passed for the defendant and the plaintiff appeals therefrom, on the judgment-roll alone.

The complaint is based on a transaction between the plaintiff and one J. F. Swan in which the former sold to the latter eight head of horses “at an agreed price of $510,” of which amount Swan paid the plaintiff $150 in money, “leaving a balance of $360,” for the satisfaction of which the said Swan “agreed to sell and deliver to plaintiff on the last day of April, 1917, six head of cows, but instead of delivering said cows to plaintiff as so agreed, J. F. Swan sold said cows to one Charles F. Hart, who now has the possession of all of said cows and wrongfully withholds the possession of all said cows, against the consent of plaintiff. ’ ’ Then follow the usual allegations in an action in claim and delivery that the plaintiff demanded of the defendant, Hart, possession of said cows,

[771]

and that the defendant still “unlawfully withholds and detains said cows from the possession of this plaintiff, to his damage in the sum of $360.” The prayer is for the recovery of the possession of said cows, or, in case delivery of such possession cannot be had, for the recovery of the above-mentioned sum, together with $150 as damages and for costs of suit.

The complaint is unverified and the issues as to the ownership and the right of possession of the cows were made by a general denial of the averments of the complaint.

The court found that the plaintiff and Swan entered into the transaction and agreement as alleged in the complaint, but that the cows were thereafter sold by Swan to the defendant, Hart, “who now has the possession of said cows,” and that the defendant is the owner of said cows and is entitled to the possession thereof. Judgment followed as above indicated.

The appellant argues, in support of this appeal, that the transaction between the plaintiff and Swan involved an executed contract—that is, that it constituted an agreement by which Swan sold to the plaintiff the six head of cows in dispute. The complaint, however, pleads no such an agreement between the plaintiff and Swan. “An executed contract is one, the object of which is fully performed. All others are executory.” (Civ. Code, sec. 1661.) And “title is trans-' ferred by an executory agreement for the sale or exchange of personal property only when the buyer has accepted the thing, or when the seller has completed it, prepared it for delivery, and offered it to the buyer, with intent to transfer the title thereto, in the manner prescribed by the chapter upon offer of performance.” (Civ. Code, sec. 1141; see, also, sec. 1140, Civ. Code, as to when the title to personal property passes.)