Byxbee v. Dewey

PER CURIAM. The plaintiff brought this action to recover the possession or value of eleven thousand raisin trays, more or less. The case was tried before a jury, and the verdict and judgment were in favor of defendant. The plaintiff moved for a new trial, which was denied, and has appealed from the judgment and order denying his motion.

Two propositions are relied upon and urged as grounds for a reversal. They are: (1) That the denials in defendant’s answer were not sufficient to raise an issue as to plaintiff’s right to recover possession of the property sued for; (2) that [546]the purchase of the said property by defendant was not accompanied by an immediate delivery, and followed by an actual and continued possession thereof, as required by section 3440 of the Civil Code, and hence it was subject to seizure by a creditor of the seller. The complaint alleges that on the twenty-fourth day of June, 1893, the plaintiff was the owner and entitled to the possession of the personal property before mentioned, and that on said day the defendant, without the consent and against the will of the plaintiff, took said property from the possession of plaintiff and still retains the same. The answer “denies that heretofore, to wit, on or about the twenty-fourth day of June, 1893, plaintiff was the owner, in the possession, and entitled to the possession” of the personal property described in the complaint, and further 1 ‘ denies that heretofore, to wit, on or about the twenty-fourth day of June, 1893, the said defendant, without the consent of plaintiff and against his will, took the said trays from plaintiff’s possession, and still withholds the same,” and alleges “that said trays were at said time, and for a long time prior thereto, the property of the defendant and in his possession.” And it further alleges, in a separate answer, and by way of cross-complaint, that on or about the first day of March, 1893, the defendant purchased the said trays from one William Applegarth, and thereupon took possession thereof, and ever since has been in the continuous possession of said property.

It'is argued for appellant that the denials in the answer are conjunctively stated, and are therefore evasive and insufficient, and that, in effect, there is no denial of the averment that plaintiff was entitled to the possession of the property. The answer was not well drawn, but it must all be read together, and, when so read, we think it must be held sufficient. The affirmative averment that the trays were, and for a long time had been, the property of defendant, and in his possession, was sufficient to negative the averments of the complaint as to plaintiff’s ownership and right of possession. “It is not essential that a traverse should be expressed in negative words. The averment in the answer of the contrary of what is alleged in the complaint has been held to be equivalent to a denial”: Perkins v. Brock, 80 Cal. 320, 22 Pac. 194; Miller v. Brigham, 50 Cal. 615.