Hisler v. Carr , 34 Cal. 641 ( 1868 )

By the Court, Rhodes, J. :

The pleadings are not contained in the transcript, but it is therein stated that this is an action of replevin in the detinet for a quantity of oats, barley, and potatoes.

It appears from each statement on motion for a new trial, that the plaintiff had purchased the property, and had taken possession of the oats and barley, and was engaged in digging and sacking the potatoes, when the defendants took the property, under an attachment against the property of the plaintiff’s vendor.

The defendants contend that they should have been allowed to deduct the expenses incurred by them in hauling the property to the point where it was shipped for San Francisco, and in digging and sacldng the potatoes.

The plaintiff insists that he is entitled to recover the gross proceeds of the property, without any deduction for freight or commissions.

The theory of each party is erroneous. The defendants are not entitled to claim compensation for money or services laid out or expended upon the plaintiff’s property, in the absence of a request, either expressed or implied, on his part. There was no express request, and none will be presumed, where property of one person is taken under legal process issued against another. Had the transactions in this case been such as to have entitled the plaintiff to waive the tort and sue for money had and received, and had he elected to proceed in that form, questions as to the liability of the defendants for the gross or the net proceeds of the property might become material; but in the action of replevin the measure of damages, in case a delivery of the property cannot be had, because the defendant has sold the property pending the litigation, is not the price at which he may have sold it. The plaintiff is not obliged to accept the proceeds of the sale when it is effected at a low price, nor, on the other hand, can he demand the proceeds when the property is sold at a high price.

The value which the plaintiff is entitled to recover under the provisions of section two hundred of the Practice Act, in case a delivery of the property cannot be had, is the value of the property, to be ascertained at the place where it is detained when the action is commenced. We refer to cases like the present one, in which the plaintiff complains only of the wrongful detention of the property. The plaintiff demands a recovery of the property, and if a delivery is had his claim is satisfied, except for damages for detention. If a delivery cannot be had, the value, at the place where the delivery should have been made, stands in lieu of the property. In case the property is not delivered to the plaintiff, the action bears a strong resemblance to an action of trover. In that action the value is to be ascertained at the place of the conversion of the chattels. (Hamer v. Hathaway, 33 Cal. 117.)

Heither the price at San Francisco, nor that price less the freight and commissions, is the true criterion of value at the place of the alleged detention; but those matters are admissible as evidence upon the question of value at the latter place.

The charge to the jury that the plaintiff was only entitled to recover the amount received by the defendant, after deducting the expenses for freight, commissions, etc., except for hauling the potatoes to the place of shipment, was technically erroneous, but was productive of no injury to the plaintiff, as the only proof of the value of the property consisted of evidence of the price received at the sale and of the expenses incurred in getting the property into market and effecting a sale, and the verdict accorded with the evidence.

The papers in the case of Besse v. Pinkham were properly excluded. When the summons is required to be published, it may be made returnable more than ten days from its date. Section five hundred and forty-one of the Practice Act fixes that as the time within which summons may be made returnable; but section five hundred and forty-three, by permitting service to be made by publication, necessarily requires that in certain cases the time should exceed ten days. (See Seaver v. Fitzgerald, 23 Cal. 86.)

The summons, however, cannot be made returnable more than ten days from its date, unless publication is required. To entitle the plaintiff to have the summons served by publication, tie must make and file with the Justice the affidavit provided for in section five hundred and forty-three.

It must be shown by the affidavits that a cause of action exists in his favor and against the defendant. The affidavit offered in evidence is silent on this point. It was not sufficient to authorize the publication of the summons, and for that reason the Justice had no power to extend the return day beyond ten days after its date. The summons was, therefore, unauthorized and void. The attachment must also fail, under section five hundred and fifty-one, for the want of a summons.

A further objection to the papers may be noticed. The undertaking given upon the issuing of the attachment was' to the effect that the plaintiff would pay all costs, etc., and the damage the defendant might sustain by reason of the attachment, “not exceeding one hundred dollars.”

The Practice Act (Sec. 553) requires an undertaking to the effect that he will pay all damages which he may sustain by reason of the attachment, without any limitation as to the amount. The attachment is unauthorized and void unless issued in substantial conformity with the provisions of the statute. (Hoffman v. Brinckerhoff, 1 Den. 184; Davis v. Marshall, 14 Barb. 96.)

Judgment affirmed, without costs.