Ruzanoff v. Retailers Credit Assn.

FINCH, P. J.

The plaintiffs brought this action for the recovery of personal property.and fixtures or their value, if delivery could not be had, and damages for the detention thereof. After the case was tried and submitted, the court, on motion of counsel for the plaintiffs, ordered that the prayer of the complaint be amended by striking therefrom the demand for the recovery of the property or its value in case delivery could not be had.

The court found in substance: That at the times mentioned in the complaint the plaintiffs were entitled to the possession of such property, consisting of “1 ice box, 1 cash register, 1 counter, 1 glass case, 2 scales, 1 meat block and 1 bread box”; that December 29, 1926, the defendant wrongfully took possession of the property and “refused to deliver said property to -plaintiffs, and still refuse to do so; . . . that plaintiffs used said personal property and fixtures to carry on and conduct a general grocery business; that by reason of the wrongful taking of the possession of said personal property . . . and the continued withholding of the

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possession of the same by defendant” plaintiffs were damaged in the sum of $450. Judgment for that sum was entered in favor of the plaintiffs and the defendant has appealed.

Appellant contends that “the amendment to the prayer for judgment was erroneously allowed.” Section 667 of the Code of Civil Procedure provides: “In an action to recover the possession of personal property, judgment for the plaintiff may be for the possession or the value thereof, in case a delivery cannot be had, and damages for the detention.” Under such a judgment the plaintiff is entitled to damages for the detention of the property, whether delivery thereof can be had or not.

(Nahhas

v. Browning, 181 Cal. 55, 57 [6 A. L. R. 476, 183 Pac. 442];

Blodgett

v.

Rheinschild,

56 Cal. App. 728, 739 [206 Pac. 674].) It does not appear, therefore, that the defendant was in any manner prejudiced by the amendment, which did not enlarge, but merely limited, the relief to which the plaintiffs were entitled. From the amendment ordered by the court and the findings it is clear that nothing was allowed for the value of the property, but that the judgment merely awards the plaintiffs damages for the wrongful detention thereof. Since judgment was not given for the value of the property it is of no importance that the evidence fails to show such value.