Visher v. Smith , 1891 Cal. LEXIS 1078 ( 1891 )

Fitzgerald, C.

The complaint in this action substantially alleges that the defendants were, at the times named therein, engaged as copartners in the business of warehousemen, and, as such, doing a general storage business; that “ prior to the third day of July, 1888,” plaintiff delivered to the defendants for storage, and stored with them, 1,040 sacks of barley, in consideration and acknowledgment of which the defendants then and there executed to plaintiff a receipt and contract in the words and figures following, to wit: —

“No. 36. Stockton, Cal., July 3, 1888.

“ Received on storage in Bagg’s warehouse, awaiting transportation for account of P. Visher, the following described merchandise at the rate of $0.75 per ton for the season ending June 1, 1889, deliverable (damage by the elements excepted) only on the return of this receipt and charges paid.

“ Marks.

Pile No. 151.

One thousand and forty sacks of barley weighing one hundred thousand and fifteen lbs.

“ Sacks 1,040.

“ Weighing 100,015 lbs.

“ (Signed) Smith & Wright.”

That plaintiff is now, and ever since its delivery to him by defendants has been, the owner and holder of said receipt; that storage was paid by plaintiff on the barley for the season ending June 1, 1889; that on or about the second day of September, 1890, he produced said receipt and presented it to the defendants without any indorsement thereon, and in the same condition as when executed, and at the same time tendered to them all charges due for storage on said barley for the seasons ending June 1, 1890, and June 1, 1891, and then and there demanded the delivery of the barley to him, also offering to surrender and give up the receipt upon the delivery thereof. The defendants refused to deliver the barley, without giving any excuse or reason therefor.

Plaintiff demands judgment against the defendants for the recovery of the possession of the barley or for the sum of $1,350, the alleged value thereof, in case delivery cannot be had.

The complaint was demurred to on the ground that it “ does not state facts sufficient to constitute a cause of action.” The demurrer was sustained by the court, and upon plaintiff refusing to amend his complaint, judgment final was rendered in favor of the defendants. The case comes here by appeal upon the judgment roll alone.

It is objected by respondents that the complaint is insufficient “because it contains no averment that at the time of the commencement of the action plaintiff was the owner and entitled to the possession of the properly claimed.”

The complaint, instead of alleging, generally, that plaintiff is the owner and entitled to the immediate and exclusive possession of the barley, states the particular facts which entitle him to such possession, and thus specially pleads his title thereto.

It is further objected “ that the complaint does not allege that defendants, at the time of the commencement of the action, were in the possession, either actually or constructively, of the property claimed.” The possession of the barley by the defendants, and their obligation to redeliver, is shown by the receipt and contract set out in the complaint, from which and their subsequent refusal to deliver it upon plaintiff’s demand, without giving any excuse or reason therefor, the law will presume the barley to have been in the defendants’ possession at the time of the commencement of the action, and the wrongful detention thereof follows as a necessary conclusion from the refusal to deliver under such circumstances.

While the complaint is not in all respects as artificially drawn nor as precise and direct in its statement of facts as it might have been, and while there are defects of form that could have been taken advantage of by special demurrer, still, upon the facts stated, we are of the opinion that the complaint is sufficient as against a general demurrer.

We therefore recommend that the judgment be reversed, with directions to the court below to overrule the demurrer.

Vancliee, C., and Belcher, C., concurred.

The Court.

For the reasons given in the foregoing opinion, the judgment is reversed, with directions to the court below to overrule the demurrer.