Sargent v. Sturm

Crocker, J. delivered the opinion of the Court—Cope, C. J. and Norton, J. concurring.

This is an action to recover the possession, or the value, if possession could not be had, of a quantity of lumber, valued at $1,100. The complaint alleges that the plaintiffs are the lawful owners and entitled to the possession of the lumber; that the lumber is in the possession of and unlawfully detained by the defendant; and that he refuses to deliver the same to the plaintiffs, though such delivery has been duly demanded. It appears that the plaintiffs sold and delivered the lumber in question to one Smith; but they contend [360]that Smith obtained the same by fraud and fraudulent representations ; and that, therefore, he never acquired any valid title thereto. The defendant claims the property, as purchaser, under a sale on an execution issued on a judgment in his favor against Smith. The plaintiffs recovered judgment in the Court below, from which the defendant appeals.

The first point raised by the appellant is that, as the complaint does not allege any tortious or unlawful taking of the property by the defendant, the plaintiffs were bound to aver and prove a special demand and refusal before commencing the action ; and a motion for nonsuit was made on that ground and overruled. The case of Paige v. O’Neal (12 Cal. 48) is very similar in many of its features to the present one. In that case the Court say: “ It was not essential to aver a demand of the defendant of the wheat in controversy in the complaint, or to prove a demand on the trial. If the property in fact belonged to the plaintiff—and it is upon this theory the suit is brought, and to this effect the evidence tended when the plaintiff rested—the seizure by the defendant was tortious ; and it is a general rule that where the possession of property is originally acquired by a tort, no demand previous to the institution of suit for its recovery is necessary. It is only when the original possession is lawful, and the action relies upon the unlawful detention, that a demand is required.” No objection was made by demurrer, that a special demand was not averred in the complaint; but the defendant took issue upon all the averments. The jury found by their verdict, that the.property belonged to the plaintiff, and that it was in the defendant’s possession. The defendant’s claim was adverse to that of the plaintiff, and his possession was therefore unlawful from the beginning. He contested the plaintiff’s claim or right to the property all through the action. If he had admitted in his answer the plaintiff’s right to the property, and that he had always been ready to deliver up the property upon demand, but no demand had been made, it might have been a question, whether he could have been compelled to pay the costs of the action. But after contesting the title of the plaintiff, through a litigated suit in which he claimed the title, he cannot escape the effects of an adverse verdict, by an objection of this kind.