Lowe v. Ozmun

McFABLAND, J.

This action was brought for an alleged conversion by defendant’s testator of certain described personal property—namely, bonds and coupons. The complaint shows that the action was commenced within three years, but not within two years, after the alleged conversion; and the court below sustained the demurrer to the complaint upon the ground that the action was barred by subdivision one of section 339 of the Code of Civil Procedure, which provides that “an action upon a contract, obligation, or liability, not founded upon an instrument in writing” must be brought “within two years.” There is no doubt that this provision includes the cause of action in the ease at bar, unless the latter comes expressly within some other category of limitation. “Liability” as used in the section includes responsibility for torts, and “is applicable to all actions at law, not specially mentioned in other portions of the statute.”

(Piller

v.

Southern Pacific R. R. Co.,

52 Cal. 42. See, also,

Raynor

v.

Mintzer,

72 Cal. 590;

McCusker

v.

Walker,

77 Cal. 212;

Lattin

v.

Gillette,

95 Cal. 317.

1

) But we think that the limitation of the cause of action in the case at bar is specifically declared

[259]

in section 338 of the Code of Civil Procedure, which provides that there may he commenced “within three years ... an action for taking, detaining, or injuring any goods or chattels, including actions for the specific recovery of personal property.” The obvious purpose of this provision was to include all actions for torts involving personal property, and we do not think that this purpose can be obscured by invoking strict definitions of the particular words used, or by contrasting them with other words which might have been used, or by nice distinctions between the common-law actions of replevin, detinue, and trover. In cases of unlawful taking or detaining personal property the wronged party has usually the option of either bringing an action for its specific recovery or an action to recover its value,—that is, an action which at common law would have been replevin or detinue or trover. Section 338 looks to the wrong,—to the thing itself,—and not to the particular kind of action which may be used to obtain the remedy. This view was expressly declared in