Conceding that the action is for the claim and delivery of personal property, the judgment is not erroneous because not in the alternative. If a judgment for the return would be unavailing, because it could not be returned, a failure to render judgment for the return, and rendering judgment for damages only, is not error. (Brown v. Johnson , 45 Cal. 76; Wells on Replevin, sec. 507; De Thomas v. Witherby , 61 Cal. 92; 44 Am. Rep. 542; Boley v. Griswold, 20 Wall. 486; Whitmore v. Rupe , 65 Cal. 238.)

         JUDGES: Paterson, J. Searls, C. J., and McKinstry, J., concurred.

         OPINION

          PATERSON, Judge

         Conceding that this action is, as claimed by appellant, an action of claim and delivery, it does not follow that the judgment is void or [17 P. 229] erroneous because not in the alternative. The court found that the defendants sold and disposed of a large portion of the property sued for, and appropriated the proceeds thereof. Under the findings of the court, -- and the findings are supported by the evidence, -- the defendants stand as wrong-doers, as fraudulent assignor and fraudulent assignee. The defendant Zech, with the intent to hinder, delay, and defraud his creditors, made the assignment to his brother-in-law, defendant Koch, and the latter, with full knowledge of the fraudulent purpose, accepted the same to aid Zech in defrauding his creditors. In pursuance of their scheme, a part of the property which should have gone to the possession of the assignee, this plaintiff, was disposed of by the defendants. This fact appearing at the trial, the court was not bound to find the character or value of the articles which could be returned, or to enter a judgment in the alternative. (Whitmore v. Rupe , 65 Cal. 238; Brown v. Johnson , 45 Cal. 76.)

         The fact that Koch paid two thousand two hundred dollars for the property -- if such be the fact -- is immaterial; it entitles the defendant Koch to no consideration, either at law or in equity. The defendants were both fraudulent actors. Actual fraud characterized the transaction ab initio, and the creditors are not called upon to reimburse Koch for money which was paid him to insure the fraud against detection. (Goodwin v. Hammond , 13 Cal. 168; Swinford v. Rogers , 23 Cal. 233.)

         The statement shows that "plaintiff offered in evidence, as admissions made by Jacob Koch as to why he took the property, and his knowledge of the circumstances of Mr. Zech, and also showing he was told the value, the testimony of Mr. Koch taken at the trial of the opposition to the discharge of Jacob Zech in insolvency." The evidence was objected to by defendant as "irrelevant and inadmissible"; objection was overruled, and defendant excepted. The evidence following this offer and ruling appears to be a transcript of the sworn testimony of Koch, but is not shown to be such except by the statement above quoted. The evidence was not irrelevant if it was in fact a statement made by Koch, and the objection that it was inadmissible was insufficient to test the question of its competency. The ruling is, therefore, not shown to be erroneous.

         The judgment is for $ 7,470 and costs. The plaintiff prayed for the sum of six thousand dollars, the value of the property, and five hundred dollars damages, and the prayer follows the ad damnum clause of the complaint, which alleges that plaintiff has been damaged in the sum of five hundred dollars by reason of the detention. In the absence of an amendment to the complaint, therefore, the court could not allow any damages beyond the amount prayed for.

         The order denying a new trial is affirmed, and the cause is remanded, with directions to modify the judgment by striking out the figures $ 7,470, and inserting the figures $ 6,500 in lieu thereof. In all other respects the judgment is affirmed.