Phillips v. Sutherland

McKINSTRY, J. action is to recover the possession of specific personal property. ' The property not having been delivered to plaintiff, the court properly found its value, and the judgment was in the alternative, for the property, or its value if the property could not be delivered: Code Civ. Proe., 667. If plaintiff recover in such an action, he is entitled primarily to the very property, and the value which he is to receive, instead of the property, is.the value as of the day of trial. The money value is a substitute for the property, and the amount can be approximately fixed by ascertaining it as of the date (when the value can be judicially determined) nearest to the time when the property would be delivered. It follows that the error of the court in allowing an unverified amendment to a verified complaint, and in allowing the amendment to be made by defacing the record—erasing words from and interlining others in the original complaint—did not injure defendant.

Judgment and order affirmed.

lWe concur: McKee, J.; Ross, J.