
    [No. 3271.
    Decided December 28, 1901.]
    Chas. H. Dodd & Co., Appellant, v. Williams-Smithson Co., Respondent.
    
    CLAIM AND DELIVERY-GROUNDS-WRONGFUL DETENTION-NON SUIT.
    In an action of claim and delivery, in which, the right of possession of certain personal property is in issue, the ownership being admittedly in plaintiff, plaintiff should be non suited where the only evidence introduced by it showed possession in defendant, that the property had been consigned to defendant to sell on commission, and the value of same, and there was nothing showing wrongful detention.
    SAME-BrRDEJT OF PROOF.
    In an action of claim and delivery the burden of proof is-upon plaintiff to show a wrongful taking or detention of the property, where defendant denies the allegations of wrong, and such burden is not shifted to defendant by reason of special defenses-being interposed as well as the general denial, -since defendant, is not called upon to offer proofs of special defénses until plaintiff has made a prima facie case.
    Appeal from Superior Court, Kittitas County. — Hon. John B. Davidson, Judge.
    Affirmed.
    
      Mires & Warner, for appellant.
    
      Kauffman & Frost, for respondent.
   The opinion of the court was delivered by

Fullerton, J.

The appellant sought by this action-to recover from the respondent the possession of certain personal property. In the complaint it alleged that it was on a date named therein the owner of the property;, that the respondent had on that date wrongfully and without its consent taken the property from its possession, and had since wrongfully detained the same; that it had, prior to the commencement of the action, demanded of respondent the possession of the property, which demand was refused; and that the property was of a certain value. The respondent, answering, admitted the ownership of the appellant, and that it was in possession of the property, but denied that it came into the possession wrongfully, or that it wrongfully detained the property, or that the appellant had ever demanded the possession of the property from it. For a further and separate answer, it alleged that it was, as a part of its business, engaged in conducting a warehouse in which goods were received in store for hire, that it had received the chattels mentioned for storage from the appellant, that its lawful charges for such storage had never heen paid, and that it had a lien on the chattels for the amount of such charges. The reply was a general denial of the affirmative matter alleged in the answer. On the trial the appellant introduced evidence tending to show the value of the property, that, the respondent had it. in its possession, that the property had heen consigned to the respondent to sell on commission, and rested its case. The respondent thereupon moved that the appellant he nonsuited, which motion. the court granted, and thereafter entered a judgment of dismissal. This appeal is from that judgment.

Counsel for the appellant argue that'the respondent, hy admitting the appellant’s title to the property and pleading a special interest in itself therein took upon itself the burden of proving its possession of the property to he rightful, and hence the proofs made a prima facie case, on which it was entitled to judgment in the absence of a contrary showing. This reasoning, it seems to us, overlooks the purpose and nature of an action of claim and delivery under the Code. The primary purpose of such an action is to recover personal property in specie; it is to enable the plaintiff to obtain possession of property wrongfully detained from him by the defendant at the time of the commencement of the action. It originates in wrong, and can he maintained only upon allegations and proofs of wrong. As the title to personal property may he in one person, and the right of possession in another, the question of the right of possession is always an issue, while the question of title may or may not he. It is necessary, therefore, for a plaintiff, in order to state a cause of action for claim and delivery to plead right of possession in himself of the property sought to be recovered. As he must plead it, so he must prove it, when his right is denied. This he may do in one or more of several ways, but it is not done by showing a mere legal title to the property. There must he some additional showing, such as a wrongful taking, or, if the taking was rightful, some subsequent act showing that the detention is wrongful, as a demand for and refusal to deliver the property. Under our practice a defendant does not waive these proofs by pleading a special interest in the property. Under the Code he may rely upon all of his defenses. When, therefore, he denies the plaintiff’s allegations of wrong, and pleads special defenses, he may rely upon his denials as well as his special defenses. By pleading the latter he does not waive the former, and until the plaintiff has made a prima facie case he is not called upon to offer proofs of his special defenses. It is evident that the appellant’s proof fell far short of showing any wrong on the part of the respondent. Taken with the admission in the answer, it showed title to the property in the appellant, the value of the property, and that the property had come rightfully in possession of the respondent, but it went no further. . It showed no wrongful taking or wrongful detention on the part of the respondent.

The judgment is affirmed.

Reavis, C. J., and Dunbar, Anders and Mount, JJ., concur.  