Summary
In Kelly v. McKibben, 54 Cal. 195, it is said: "The distinction between this action [to recover possession, or the value in case a delivery cannot be had] and one to recover damages for the wrongful conversion of personal property, is just as broad as that between the common-law actions of detinue and trover.
Summary of this case from Richards v. MoreyOpinion
Rehearing (Denied, Granted) 54 Cal. 192 at 194.
Appeal from a judgment for the plaintiff, and from an order refusing to retax costs, in the Fourth District Court, City and County of San Francisco. Morrison, J.
The judgment is for the return of the property described in the findings, or if such return cannot be had, then for damages in the sum of $ 849, with legal interest on $ 699, a portion thereof, (being the value of the property) from the time of the taking, and for costs. The property is described in the findings as being that mentioned in the complaint--there being an amended complaint in the action. The value of the property at the time of the taking is found to be $ 699, and it is also found that plaintiff had properly expended, in the pursuit of the property, $ 150--the two sums making the aggregate sum of $ 849--the amount named as damages in the judgment.
COUNSEL:
Mogan & Sullivan, for Appellant.
D. T. Sullivan, for Respondent.
JUDGES: Sharpstein, J. Myrick, J., and Thornton, P. J., concurred.
OPINION
Sharpstein, J.:
On Petition for Rehearing
Since the opinion in this case was filed, it has been suggested to us by the counsel for respondent that we must have overlooked or not duly considered § 3336 of the Civil Code, and also Barrante v. Garratt, 50 Cal. 112. We certainly did not overlook that section of the Civil Code, but thought then, as we still think, that it was not applicable to this case. This is an action to recover specific personal property. An inspection of the complaint cannot fail to impress that upon the mind of counsel. The plaintiff alleges that the defendant unlawfully took and unlawfully detains the property of the plaintiff, and demands judgment for a return of it. Section 627 of the Code of Civil Procedure specifies what the verdict shall be in such a case; and § 667 of the same Code provides that, " In an action to recover the possession of personal property, judgment for the plaintiff may be for the possession or value thereof, in case a delivery cannot be had, and damages for the detention."
The distinction between this action and one to recover damages for the wrongful conversion of personal property, is just as broad as that between the common-law actions of detinue and trover. A good pleader, under the Code, would never confound the two causes of action. One lies for the recovery of the property itself, with damages for the wrongful detention of it, the other for the recovery of damages for the wrongful conversion of it. In the former case the judgment must be for the possession of the property, if a delivery can be had, or for the value thereof, if a delivery cannot be had, with damages for the detention, in either case. If § 3336 of the Civil Code applies to this action, then the plaintiff, in case a delivery of the property can be had, is entitled to recover in addition thereto its value at the time of the detention becoming unlawful, with interest from that time, and a fair compensation for the time and money properly expended in the pursuit of the property; because, in an action for the recovery of personal property, the damages, whether a delivery can be had or not, must be " for the detention," and if that section of the Civil Code supplies the rule for measuring the damages for such detention, the value of the property must be included in any event. If the Legislature intended to provide a rule which should only apply to cases in which a delivery could not be had, it has failed to express that intention. As the provision of the Civil Code now stands, it applies to actions for the recovery of damages for the wrongful conversion of personal property, and not to actions for the recovery of personal property wrongfully detained.
If Barrante v. Garratt, supra , is correctly reported, our views are not in conflict with the opinion delivered in that case. That action is stated to have been " brought to recover damages for the conversion of the building." That is very different from an action to recover the building itself. We are, therefore, unable to discover any good reason for modifying our former opinion and judgment.
Motion denied.