Meads, Seaman & Co. v. Lasar

Harrison, J. Action of claim and delivery of certain persona] property in the possession of the defendant Graves, as sheriff of Monterey County, under an attachment issued in an action brought by the defendant Lasar against certain vendors of the plaintiffs.

The plaintiffs were creditors of the firm of S. Houghton & Sons to the amount of several thousand dollars, and on May 21,1888, bought from them certain personal property, consisting of hogs, horses, and other cattle, including that described in the complaint, taking from them a bill of sale therefor, and crediting the agreed price upon their account against them. At the time of [225]the purchase the property was delivered to the plaintiffs, and placed by them in the possession of one Worley as their agent, and was kept by him in the same pasture in which it had been previously kept by the Houghtons» until taken by the sheriff as hereinafter stated. In July of that year, the defendant Lasar sued out a writ of attachment in an action brought by him against the Houghtons, under which the sheriff took possession of the property described in the complaint, and in December following, Lasar commenced another action against, the same defendants, in which he sued out another attachment, under which the sheriff held the property at the time the present action was commenced. After the commencement of the present action, judgment was rendered in favor of Lasar in his action against the Houghtons, and an execution thereon issued to the sheriff, by virtue of which the property was sold. The cause was tried before a jury, and a verdict, rendered in favor of the plaintiff, "for the return to them of the property described in the complaint, or its value-, to wit, the sum of one thousand dollars and costs.” From the judgment entered thereon, and from an order denying a new trial, the defendants have appealed..

1. The judgment as entered is not in conformity with the statute. Section 667 of the- Code of Civil Procedure provides that in an action to recover the possession of personal property, judgment is to be “for the possession, or the value thereof in case a delivery thereof cannot be had.” There is nothing in the- present record which shows that a delivery cannot be- had, and the verdict of the jury would imply that the property is- susceptible of delivery by the defendants. The plaintiffs are not entitled to recover from the defendants the value of the property, unless they are unable to deliver- it. The defendants are entitled to satisfy the plaintiffs’ claim by a delivery of the property sued for, and can be compelled to pay its value only in case such delivery cannot be had. (Etchepare v. Aguirre, 91 Cal. 288.) They may have purchased the property at the execution