Benzler v. Van Fleet

RICHARDS, J.

This is an appeal from a judgment and order denying a new trial in an action brought to recover the possession of seven head of cows, delivered by the plaintiff to the defendant to be pastured for hire, or to recover their value in case their return could not be had.

The chief defense to the action was that the cows had died or strayed away and been lost during the period of their bailment through no fault of the defendant. The trial court rendered judgment in favor of the plaintiff in accordance with

[390]

the prayer of his complaint, fixing the value of the cattle at the sum of two hundred and forty dollars.

The principal point urged upon this appeal is that the action being in form an action for claim and delivery, and the evidence showing that the plaintiff knew before he commenced this action that the cows had either died or strayed away from the defendant’s pasture and been lost, he should have brought an action for conversion or for damages for the negligent keeping of his cattle, but could not maintain an action of claim and delivery, and hence that the judgment herein should be reversed.

We are unable to agree with the appellant’s contention as to either the law or the facts of the case, or to perceive the distinction he seeks to draw between

Faulkner

v.

First National Bank,

130 Cal. 258, [62 Pac. 463], and the case at bar. Both were actions to recover personal property or its value from bailees, and the contention in each case was the same, viz., that the bailee having parted with the possession of the property prior to the inception of the action, a suit in the form of claim and delivery could not be maintained. But in the Faulkner ease the supreme court points out clearly that the term “claim and delivery” as used in the Code of Civil Procedure, does not refer to a form of action but merely to an auxiliary remedy; and that in this state there is but one form of action, “which has no name, so that an action cannot be defeated here as it could be at common law because not properly named.” In the later case of