
    MANTI CITY SAVINGS BANK v. PETERSON et al.
    No. 1745.
    Decided July 19, 1906
    (86 Pac. 414).
    1. Replevin — Complaint—Sueeiciency—Allegation as to Ownebship. — In a suit to recover personal property, the complaint must show that plaintiff was the owner or entitled to possession of the property at the time of the commencement of the action, and it is not sufficient to aver that he was the owner and entitled to possession on the day preceding the filing of the complaint.
    2. Chattel Mortgages — Possession by Mortgagee — Action—Evidence. — In an action by a chattel mortgagee to recover certain sheep under a provision in the mortgage giving him the right to take possession of the property on default in payments, evidence examined, and held sufficient to show that the mortgagor owned the sheep at the time of the execution of the mortgage and to identify the property therein described.
    
      3. Sales — Bailment Distinguished. — A lease of sheep under an agreement that they shall be branded with the lessee’s mark, and commingled with sheep of his own haying the same mark, the lessors to be paid so much wool per sheep and a certain rate of increase each year, is a bailment and not a sale.
    
    Action by the Manti City Savings Bank against Niels Peterson and. others. Judgment for plaintiff, and defendants appeal.
    Appeal from District Court, San Pete County; E. Erickson, Judge.
    Eeveesed.
    
      J. M. Cherry, Ephraim Hansen, and Jos. L. Rawlins for appellants.
    
      W. D. Livingston and Arthur Brown for respondent.
    
      
       Wetzel v. Deseret Bank et al., 30 Utah 62, 83 Pac. 570; Turnbow v. Beckstead, 25 Utah 468, 71 Pac. 1062; Rich v. Bank, 30 Utah 334, 84 Pac. 1105.
    
   STBAUP, J.

1. The respondent, plaintiff below, brought this action against defendants to recover the possession of sheep. Upon findings made by the trial court, judgment was rendered in favor of plaintiff. The first assignment of errors assails the sufficiency of the complaint. It was alleged in the complaint “that the plaintiff on the 2d day of September, 1903, was entitled to the possession” of the sheep; that on that day a demand for the possession was made by the plaintiff, but the defendants refused to deliver. The complaint was filed September 3, 1903. The defendants’ demurrer to the complaint for want of facts, and their objection on the same ground to the introduction of evidence, were overruled. It is contended that the complaint is insufficient because it does not allege that the plaintiff was the owner or entitled to the possession of the property at the time the action was commenced. The contention must be sustained. •

In. a suit to recover personal property the complaint must show the ultimate fact that the plaintiff was the owner or entitled to the possession at the time of the commencement of the action; and it is not sufficient to merely aver that he was the owner or entitled to possession at some period prior 1» that time. (Fredericks v. Tracy, 98 Cal. 658, 33 Pac. 750; Affierbach v. McGovern, 79 Cal. 269, 21 Pac. 837; Masterson v. Clark, [Cal.], 41 Pac. 796; Holly v. Heiskell, 112 Cal. 174, 44 Pac. 466; Kimball Co. v. Redfield, 33 Or. 292, 54 Pac. 216; Cobbey on Replevin, sections 97, 98.) This principle of law is not disputed by the respondent, but it is claimed that the allegation of right to possession on the 2d day of September, the complaint having been filed on the 3d, is a sufficient allegation, and equivalent to the one that the plaintiff was entitled to the possession at the commencement of the action. This claim is answered, adversely to the respondent, by the court in Fredericks v. Tracy, where, in speaking of the difference between that case ánd the case of Afflerbach v. McGovern, it said:

“The alleged ownership and right of possession in that case was long before the suit brought, while here it is placed at a date only two days prior to the commencement of the action; but this does not alter the principle, which is that the plaintiff must show his ownership and right to possession at the time the action is commenced.”

No such averment having been made, the court erred in overruling the demurrer and objection.

2. Inasmuch as the case must be remanded for a new trial, and that other points presented may again be raised on retrial, it is proper that we express our opinion on them. It is urged that the defendants’ motion for nonsuit ought to have been granted. That claim is ma.de, principally, on the ground that the property was not sufficiently identified, and that the plaintiff had not shown ownership nor right to possession of the property. In December, 1902, one Peter Thompson, to secure an indebtedness, gave the plaintiff a chattel mortgage on 1600 head of sheep, and their increase marked “with two upper bits in the left ear, and an upper bit in the right ear, branded with ‘T’ on the back.” By a provision in the mortgage, on default of payments, tbe plaintiff was given tbe right to take tbe property into' bis possession. Such default was made August 1, 1903. At about that time the mortgagor died at bis sbeep camp, and in tbe possession of about 2,900 bead of sheep', of wbicb about 2,163 bead were marked and branded as in the mortgage described. After tbe death of tbe mortgagor, and on August 2d, or 3d, tbe plaintiff engaged a person who was acquainted with tbe deceased’s sheep, to go to tbe camp and see “if everything was all right.” On bis arrival at tbe camp be found tbe sbeep in charge of two men and boys. 'He hired one of them to look after tbe sbeep until tbe plaintiff made other arrangements. On tbe 4th or 5th of August another person was employed by plaintiff to take tbe sbeep with Peter Thompson’s mark on them, and as described in tbe mortgage. In his effort to do so tbe person in charge refused to let him have them. Thereafter the sbeep so marked were taken by the plaintiff on its writ. It was also shown that such mark was Peter Thompson’s mark, and that for a number of years prior to his death be was in the sheep business, and each year bad in his possession upwards of 2,000 sbeep marked as in tbe mortgage described. The note and mortgage, of course, were admitted in evidence and proof made of nonpayment and default. We think this evidence, prima facie, at least, tended to show that the deceased was tbe owner of the sbeep at the time of the execution of thei mortgage, and sufficiently identified tbe property described in the mortgage. Tbe court, therefore, properly overruled tbe motion.

3. That defendants introduced evidence tending to show that prior to the execution of the mortgage they bad leased sbeep to Peter Thompson, and wbicb were of the herd mortgaged by him to the plaintiff. Neils Thompson, one of tbe defendants, testified: “I am a brother of Peter Thompson. I was acquainted with the band of sheep in Peter Thompson’s possession in 1902. I bad 915 head of sheep in that band in in 1902. I first delivered him something over 100 head in 1896, upon the terms that he was to run them and give me ten per cent, increase and one and one-quarter pounds of wool per bead per year, and at tbe end of tbe year return my sbeep or renew tbe contract. Tbe next year I left tbe increase and added more sbeep and renewed tbe contract. In 1897 I bad 266 bead. I renewed tbe contract each year. In 1898 I bad 292 bead. In 1899 I bought 100 bead from C. J\ Pisber and added to my contract, making 421 altogether. In 1900 I bought more sbeep and turned them in, making a total of 751. In 1901 I bad 832, and in 1902 I bad 915 bead in tbe herd on those terms. I bad no written contract. We settled up at tbe end of each year, and Peter Thompson acknowledged tbe number. In September, 1903, I bad, with tbe increase added, 1006 sbeep in bis herd belonging to me. Tbe sbeep were marked with Peter Thompson’s mark. I consented to them being marked that way. I settled with Peter Thompson in 1902, and we agreed on 915 bead, and tbe contract was renewed for another year upon tbe same terms.”

In connection with tbe testimony of other defendants with respect to their having leased sbeep to Peter Thompson, tbe following memoranda, executed by him, were admitted in evidence:

“Ephriam, Utah, October 1, 1901.
“This certifies that I have 489 2-10 sbeep on shares belonging to Albert Thompson, for which I agree to pay one and one-balf pounds of wool and ten sbeep increase per hundred, tbe sbeep when delivered to be at or near Ephriam, and to be an average of my herd. PetEe Thompson.”
“Ephraim, Utah, October 1, 1901.
“This certifies that I have leased and received of O. J. Pisber, of Ephraim, Utah, 387 bead of stock sheep for one year, and agree to pay to said C. J. Eisber ten bead of sbeep increase on each one hundred, also one and one-balf pounds of wool on each bead for tbe lease and use of said sheep. Tbe said 387 sbeep, together with the ten on each one hundred increase, when returned to said C. J. Pisber, to be an average of all tbe sbeep in my herd, and to be received by him or delivered to him within thirty miles of Ephraim, Utah, on October 1, 1902. The said sbeep to be separated from my herd in the presence of said C. J. Fisher, or representatives duly authorized by him to receive them.
Peter ThompsoN.”

Similar evidence of other defendants was also admitted. Book entries made by the deceased and in his handwriting, showing accounts and transactions between him and the defendants, with respect to the leasing of sheep, were also admitted. The defendants testified that the sheep leased" by them to the deceased were marked with Peter Thompson’s mark with their consent; that it was the custom to mark leased sheep with the lessee’s mark; and that they were marked in that way so they could be identified. After 'the testimony of the defendants with respect to their having leased sheep to the deceased, and of their ownership, had been received, on plaintiff’s motion, the court ruled it out. In this ruling we think the court erred. The respondent seeks principally to uphold the ruling because of the fact that the defendants’ sheep, with the consent of the parties, were marked with Peter Thompson’s mark, and were commingled with sheep of his own having the same mark, and that, therefore, the sheep claimed to have been leased by the defendants could not be distinguished from the sheep owned by the deceased, and from the nature of the contracts the identical sheep leased were not to be returned to them; and therefore, the transactions must be regarded as sales or another passing of title, and not as bailments or as creating a tenancy in common. Under the holdings of this court the claim is not tenable. (Wetzel v. Deseret Bank et al., 30 Utah 62, 83 Pac. 570; Turnbow v. Beckstead, 25 Utah 468, 71 Pac. 1062; Rich v. Bank, 30 Utah 334, 84 Pac. 1105.) The court should not have stricken the testimony, but should have considered it and made findings with respect thereto'.

The judgment of the court below is reversed, plaintiff given leave to amend its complaint, and a new trial granted. Costs of the appeal are to be taxed against the respondent.

McOABTY, J., concurs. BARTCH, C. J., concurs in the judgment.  