Phelps v. Owens

Baldwin, J., delivered the opinion of the Court Terry, C. J., and Field, J., concurring.

This was an action of trespass—or in the nature of such an action —brought by plaintiff, Phelps, against defendants, for wrongfully and unlawfully taking away certain goods and converting them to their own use. The complaint further alleges that at the time of this taking and conversion, the plaintiff was a merchant and doing a prosperous business; that the goods constituted nearly all his stock in trade, and that the taking of the goods has thrown him out of business, and nearly ruined his fortunes.

To this complaint defendants demurred, assigning several causes of demurrer—none of which were well taken. The complaint states— unnecessarily, it is true, but harmlessly—in ;the commencement, that the defendants are indebted to the plaintiff in the sum of $5,000; but this does not make it an action on contract, for the body of the complaint shows very clearly the cause of action to be a trespass, out of which this claim for money proceeds. There is no misjoinder, because there is but one count and one claim; the claim to recover, or to aggravate the damages—as it may be construed—or for special damages, arising fronnnterruption of business, though not stated with sufficient particularity or definiteness, is not specifically demurred to on that ground. The damages might or might not be enlarged for this cause, according to the circumstances. If the trespass were “ willfully and wrongfully committed,” as the complaint charges, the jury might go beyond the actual value of the goods taken and give compensation for the loss of business, credit, etc., if these injuries were properly stated. But as the demurrer does not specifically object to the generality of the statement in this respect, the Court was not bound to notice the defect, which is of matter of form.

[24]After the demurrer was overruled, the defendants separately answered, putting the matters of the complaint in issue, and setting up new matter—which last will be noticed more particularly hereafter.

On the trial, it appeared that defendant, Owens, sued out an attachment against one Gove, in the hands of Webster, Deputy Sheriff of San Joaquin. Owens gave Webster a bond of indemnity after this levy, on the requisition of the Sheriff. The officer levied the attachment on this property as subject to the process, and Owens, having subsequently obtained judgment in his suit against Gove, sued out execution, under which Webster, the officer, sold the goods. The goods brought at the sale $1,492 42. There is some discrepancy in the proofs as to the actual value of the goods. The goods were claimed as the property of the plaintiff, who claimed to have bought them of Gove prior to the levy. The main question contested before the jury was, whether this sale to the plaintiff by Gove was or was not fraudulent; and the defendants’ proof, as usual in such cases, was mostly circumstantial. The jury returned a verdict of $1,800.