Meads, Seaman & Co. v. Lasar

28 P. 935, 92 Cal. 221, 1891 Cal. LEXIS 1201

• Court: California Supreme Court
• Decided: December 11, 1891
• Docket: No. 14226
• Status: Published

Opinion

Harrison, J.

Action of claim and delivery of certain persona] property in the possession of the defendant Graves, as sheriff of Monterey County, under an attachment issued in an action brought by the defendant Lasar against certain vendors of the plaintiffs.

The plaintiffs were creditors of the firm of S. Houghton & Sons to the amount of several thousand dollars, and on May 21,1888, bought from them certain personal property, consisting of hogs, horses, and other cattle, including that described in the complaint, taking from them a bill of sale therefor, and crediting the agreed price upon their account against them. At the time of the purchase the property was delivered to the plaintiffs, and placed by them in the possession of one Worley as their agent, and was kept by him in the same pasture in which it had been previously kept by the Houghtons» until taken by the sheriff as hereinafter stated. In July of that year, the defendant Lasar sued out a writ of attachment in an action brought by him against the Houghtons, under which the sheriff took possession of the property described in the complaint, and in December following, Lasar commenced another action against, the same defendants, in which he sued out another attachment, under which the sheriff held the property at the time the present action was commenced. After the commencement of the present action, judgment was rendered in favor of Lasar in his action against the Houghtons, and an execution thereon issued to the sheriff, by virtue of which the property was sold. The cause was tried before a jury, and a verdict, rendered in favor of the plaintiff, "for the return to them of the property described in the complaint, or its value-, to wit, the sum of one thousand dollars and costs.” From the judgment entered thereon, and from an order denying a new trial, the defendants have appealed..

1. The judgment as entered is not in conformity with the statute. Section 667 of the- Code of Civil Procedure provides that in an action to recover the possession of personal property, judgment is to be “for the possession, or the value thereof in case a delivery thereof cannot be had.” There is nothing in the- present record which shows that a delivery cannot be- had, and the verdict of the jury would imply that the property is- susceptible of delivery by the defendants. The plaintiffs are not entitled to recover from the defendants the value of the property, unless they are unable to deliver- it. The defendants are entitled to satisfy the plaintiffs’ claim by a delivery of the property sued for, and can be compelled to pay its value only in case such delivery cannot be had. (Etchepare v. Aguirre, 91 Cal. 288.) They may have purchased the property at the execution sale for the express purpose of returning it to the plaintiffs if they should be defeated in the present action. This error, however, can be corrected by an amendment of the judgment, so that it may correspond with the verdict.

2. Whether the sale -of the property by the Houghtons to the plaintiffs was “.accompanied by an immediate delivery ” which was “ followed by an actual and continued change of possession” was a question of fact to be determined by the jury from the evidence before it. (Godehaux v. Mulford, 26 Cal. 316; 85 Am. Dec. 178; Claudius v. Aguirre, 89 Cal. 501.) There was evidence introduced at the trial which tended to show such delivery and change of possession, and the jury were properly instructed by the court in reference thereto. We cannot say that their verdict is not sustained by the evidence.

3. The objection to the admission in evidence of the certificate of partnership offered on behalf of the plaintiffs cannot be sustained. The requirement, in section 2466 of the Civil Code, that partnerships transacting business “under a fictitious name, or a designation not showing the names of the persons interested as partners in such business,” must file and publish a certificate “stating the names in full of all the members of such partnership” shows that the object of the section is, that public notice shall be given and a public record made -of the individual members of such partnerships with such definiteness and particularity that those dealing with them may at all times know who are the individuals with whom they are dealing, or to whom they .are giving credit or becoming bound. The members of such partnership may be as fully identified and designated for this purpose by a certificate which states their names with the initials by which they are generally known, as they would be if their names were written therein at length.

The certificate in the present case is as follows: —

“ We, the undersigned, L. H. Meads and J. D. Seaman, residents of San Miguel, San Luis Obispo County, California, and E. S. Doud, resident of Oakland, California, do hereby certify that we are a copartnership transacting business in San Luis Obispo County, California, under the name and style of Meads, Seaman & Co.” (signed by the partners in the same manner).

It is not shown or contended that the individual members of the partnership were not fully designated by their names as thus stated in the certificate, nor was there any evidence that their names are other than as stated therein. (See Nelson v. Doble, 13 Cal. 74.)

The provision which requires a publication of the certificate “once a week for four successive weeks” is satisfied by one publication in each of four successive weeks. Any act that depends upon such publication can be performed at any time after the expiration of four weeks from the first of such publications. In the present case, the record shows that the certificate was published “ for four successive weeks, commencing on the twenty-sixth day of August, 1887, and ending on the sixteenth day of September, 1887, and on the following dates: August 26, September 2, September 9, and September 16,1887.” The action was not commenced until several months thereafter.

4. Appellants urge in their brief that the verdict is erroneous in finding for the plaintiffs for a return to them of the property described in the complaint, for the reason that it was shown at the trial that the sheriff did not take all of such property. As they did not, however, in their statement of the case specify this as one of the particulars in wdrich the evidence is insufficient to justify the verdict, we cannot consider it, the only specification being, “ the evidence was insufficient to justify the jury in finding for the plaintiffs the amount found by their verdict”; but there is sufficient evidence to justify this part of the finding. It may be that if such specification had been made, the plaintiffs would have caused certain evidence to be inserted in the statement in support of the verdict. (Winterburn v. Chambers, 91 Cal. 170.)

5. The statement contains certain specifications of errors of law in excluding answers to questions asked by the defendants, but the appellants have not shown in their brief wherein such answers would be material to any issue before the jury, and from an examination of the record we are unable to perceive their materiality. It was not error for the court to allow oral testimony for the purpose of showing who constituted the members of S. Houghton & Sons, or for the purpose of showing who were the owners of the property prior to its sale to the plaintiffs.

The order denying a new trial is affirmed, but the court below is directed to correct the judgment as entered, by making it conform to the verdict, and as so corrected it will stand affirmed.

Garoutte, J., and Paterson, J., concurred.