Cain v. Cody

VANCLIEF, C. Action to recover possession of personal property (two thousand eight hundred and fifty bushels of charcoal) or the value thereof, in case a delivery cannot be had, and $384 damages for the wrongful detention thereof. The defendant denied that plaintiff was owner or entitled to possession of the property, denied that the value thereof exceeded $100, and denied all damages. But he avowed the taking and detention, and justified the same as sheriff, under a writ of attachment at suit of W. T. Elliot against one Hock Chung, alleging that the charcoal was the property of Hock Chung, and subject to the attachment. The cause was tried by a jury, whose verdict was as follows: “We, the jury impaneled to try the case in which J. S. Cain is plaintiff and M. J. Cody is defendant, find judgment for plaintiff in the following amount, to wit: Value of coal, $546; damages in pursuit of recovery of property, $384; total, $930.” Upon this verdict the court rendered judgment that plaintiff recover possession of the charcoal described in the complaint, “to wit, 2,850 bushels, more or less,” or the sum of $546, the value thereof, in case delivery cannot be had, and the sum of $384 damages for the detention of said personal property, together with plaintiff’s costs. No objection to the form or substance of the verdict appears to have been made in the court below until twenty-two days after the verdict was recorded and the jury discharged.

1. It is urged by counsel for appellant that the verdict is insufficient, because it fails to find “the right of the plaintiff to the possession of the property,” and therefore furnishes no basis upon which the judgment for a return of the property, or for the value thereof in case a return could not be had, can stand. Though informal, I think the verdict may be fairly construed to be a general verdict for the plaintiff, besides separately and specially finding the value of the property and assessing the damages. This general verdict for plaintiff responds to all issues as to which the law does not require a special verdict, and implies a finding that plaintiff was owner and entitled to the possession of the property, since no special verdict to this effect is required in an action of this kind: [491]Etchepare v. Aguirre, 91 Cal. 288, 25 Am. St. Rep. 180, 27 Pac. 668; Mendelsohn v. Anaheim Lighter Co., 40 Cal. 657. The word “judgment” was evidently used by the jury in the sense of the word “verdict.”

2. It is contended that the verdict is erroneous, for the reason that the jury allowed as damages compensation for the time and money expended in pursuit of the property. This question was well considered, and decided adversely to the views of appellant in the late case of Arzaga v. Villalba, 85 Cal. 191, 24 Pac. 656. Whether or not these damages should have been specially pleaded is not involved in this case, since no objection to the evidence thereof was made on this ground in the court below, and no point upon this question is made by counsel here.