
    McGREGOR, Respondent, v. LANG, Appellant.
    (No. 2,095.)
    (Submitted May 2, 1905.
    Decided July 3, 1905.)
    
      Claim and Delivery — Pleadings—Complaint—Sufficiency— Presumptions — Verdict — Findings — Judgment — Description of Property.
    
    Claim and Delivery — Pleadings—Sufficiency of Complaint.
    1. A complaint alleging that defendant at divers times prior to and’ within one year before a certain date wrongfully and without plaintiff’s consent took certain cattle from his possession; “that on the-10th day of March, 1902, plaintiff was, ever since has been, and now is the owner of the following described cattle * * * of the value of $1,200”; that before the commencement of the action on March 10,. 1902, plaintiff demanded of defendant possession of the cattle; and that defendant still unlawfully withholds them from plaintiff’s possession — was good as against a general demurrer.
    Appeal — Presumptions—Evidence—Support of Verdict.
    2. On appeal from a judgment in claim and delivery for cattle converted by defendant, the court must presume, in the absence of the-evidence, that such evidence supported the verdict, which found that plaintiff was the owner of only part of the cattle claimed, and placed a value upon the part, averaging more per head than the sum claimed for all averaged per head.
    Claim and Delivery — Verdict—Implied Findings.
    3. A general verdict for plaintiff in claim and delivery implies a. finding on each material issue, and it is not necessary that there be an express finding that the plaintiff was the owner or entitled to the possessioh of the property at the time of the commencement of the action.
    
      Claim and Delivery — Judgment—Description of Property — Sufficiency.
    4. In an action for claim and delivery, the jury found hy general verdict that plaintiff “is the owner and entitled to the possession of the following described animals: Twenty-sis steers branded-]-] on the left side, and fish or dove tail earmarks; * * * ten heifers, branded •]]- on the left side, and fish or dove tail earmarks. * * *” The-judgment ordered that plaintiff have and recover the property described in the verdict. Held, that the judgment was not so vague and uncertain in the description of the property as to render it impossible to identify the animals and enable defendant to make a return thereof.
    
      Appeal from District Court, Flathead County; D. F. Smith,. Judge.
    
    Action by F. McGregor against John Lang, Jr. From a-judgment for plaintiff, defendant appeals.
    Affirmed.
    
      Mr. Sidney M. Logan, and Messrs. Foot & Pomeroy, for Appellant.
    Tbe verdict does not find that at tbe time of the commencement of the action the plaintiff was the owner and entitled to-the possession. In this particular the verdict and judgment are not sustained by the allegations of the complaint or the-finding of the jury. (Bane v. Peerman, 125 Cal. 220, 57 Pac. 885; Gillette v. Hibbard, 3 Mont. 419; Largey v. Sedmon,. 3 Mont. 476; Foster v. Wilson, 5 Mont. 57, 2 Pac. 310; Quirk v. Clark, 7 Mont. 31,14 Pac. 669; Whiteside v. Lebcher, 7 Mont. 478, 17 Pac. 548; 1 Freeman on Judgments, 120, 257, 258, et seq.; Gregory v. Nelson, 41 Cal. 286; Beronio v. Yentura Lumber Co., 129 Cal. 236, 79 Am. St. Eep. 118, 61 Pac. 958; Chapman v. Hughes, 134 Cal. 654, 58 Pac. 298, 60 Pac. 974, 66 Pac. 982; Harris v. Lloyd, 11 Mónt. 405, 28 Am. St. Eep. 475, 28 Pac. 736; Croke v. American Nat. Bank, 17 Colo. App. 3, 70 Pac. 229; In re Craigie’s B-state, 24 Mont. 42, 60 Pac. 495.) “Ownership alone, without possession, is-not sufficient to support the action. The action is possessory, and ownership is only incidental to the main issue.” (Oobbey on Eeplevin, sec. 91. See, also, Id., sec. 132; Bach, Corey & Co. v. Montana L. & P. Co., 15 Mont. 346, 39 Pac. 291; Cameron v. Wentworth, 23 Mont. 78, 57 Pac. 648; Glass v. Basin-■ 
      
      '& B. S. Min. Co. (Mont.), 77 Pac. 803; W. W. Kimball Co. v. Redfield, 33 Or. 292, 54 Pac. 216; Truman v. Young, 121 Oal. 490, 53 Pac. 1073; Babcock v. Caldwell, 22 Mont. 461, 56 Pac. 1081; Laubenheimer v. McDermott, 5 Mont. 517, 6 Pac. 344.) The plaintiff must allege and prove a right of possession at the commencement of the action. (People’s Sav. Bank of Fresno v. Jones, 114 Oal. 422, 46 Pac. 278; Garcia v. Gunn, 119 Cal. 315, 51 Pac. 684; Holly v. Herskell, 112 Oal. 174, 44 Pac. 466; Fredericks v. Tracy, 98 Oal. 658, 33 Pac. 750; Bane v. Peerman, 125 Oal. 220, 57 Pac. 885.)
    This verdict does not even find an unlawful detention on the part of the defendant. It simply finds that plaintiff is entitled to the possession. If being silent upon the issue as to detention, the judgment is no bar to an action in conversion against the defendant, or an action in claim and delivery against his vendees. (Campbell v. Rankin, 2 Mont. 368; Glass v. Basin & B. 8. Min. Co. (Mont.), 77 Pac. 303; Klinschmidt v. Benzee, 14 Mont. 55, 43 Am. St. Pep. 604, 35 Pac. 460.)
    In this important particular the verdict does not respond to the issues. (Jones v. Snyder, 8 Or. 127; 8mith v. Smith, 17 Or. 444, 21 Pac. 439.) “The verdict must describe the property with certainty. Thus where four hogs were in issue, and the jury found for plaintiff for two, without stating which two, the verdict was too uncertain to support a judgment.” (Oobbey on Peplevin, sec. 1066, and cases cited; see, also, sec. 1067, and cases cited, and sec. 1069.)
    
      Messrs. Noffsinger & Folsom, Mr. B. J. Mclntire, and Mr. W. H. Poorman, for Pespondent.
    “The complaint must contain an averment that the plaintiff is the owner of the property, or that the title is in him, or that the right of possession is in him at the time of the commencement of the suit.” (Oleson v. Merrill, 20 Wis. 462, 91 Am. Dec. 428; Pattison v. Adams, 7 Hill, 126, reported in 42 Am. Dec. 59, which is a leading case; Luther v. Arnold, 8 Bicli. 24, 62 Am. Dec. 422; Simmon v. Lyons, 55 N. Y. 671: Pope v. Hanmer, 74 N. Y. 240; Zirngibl v. Calumet & C. Canal etc. Co., 157 111. 430, 42 N. E. 431; Flew v. Missouri etc. By. Co. (Tex. Civ. App.), 29 S. W. 403; Scofield v. Whitelegge, 49 N. Y. 259; Vogel v. Babcock, 1 Abb. Pr. 167.)
    Erom tbe allegation of ownership, right of possession is presumed. The pleading must state the ultimate fact, that is, ownership, or if not an owner, a state of facts showing a special property in the property sought to be recovered, which entitles plaintiff to its possession. (18 Ency. of PI. & Pr. 537;. Wilmot v. Lyon, 7 Ohio C. C. Dec. 397; Bobinson v. Fitch, 26 Ohio St. 659.)
    The verdict complies with section 1103 of the Code of Civil Procedure. (See Prescott v. Heilner, 13 Or. 200, 9 Pac. 403; Stephens v. Scott, 13 Ind. 515; Onstatt v. Beam, 30 Ind. 259, 95 Am. Dec. 695; Johnson v. Fraser, 2 Idaho, (404), 371, 18 Pac. 48; Corbell v. Childers, 17 Or. 528, 21 Pac. 670; Cassel v. Western Stage Co., 12 Iowa, 47; Branstetter v. Morgan, 3 N. D. 290, 55 N. W. 758; Etchepare v. Aguirre, 91 Cal. 288, 25 Am. St. Bep. 180, 27 Pac. 668.)
   MB. JUSTICE MILBUBN

delivered the opinion of the court.

This is an action in claim and delivery, wherein the plaintiff, in an imperfect complaint, alleges that the defendant “at divers times prior to and within one year before the 1st day of March, 1902, * * * without plaintiff’s consent, wrongfully took” certain cattle from his possession, and that on the 10th day of March, 1902, “the plaintiff was, ever since has been, and now is the owner of the following described cattle: Thirty-five head of range cattle, consisting of steers and cows, branded on left side, and earmarks of fish or dove tail, of the value of $1,200, and thirteen yearling heifers with the same brands and marks as aforesaid, and of the value of $326; that before the commencement of this action, to-wit, on or about the 10th day of March, 1902, the plaintiff demanded of the defendant possession of said cattle”; that the defendant “still unlawfully and wrongfully withholds and detains said goods and chattels-from the possession of the plaintiff, to his damage,” etc.

The defendant answered, denying each and every allegation of the complaint. There was not any demurrer. The jury found by general verdict that plaintiff “is the owner and entitled to the possession of the following described animals Twenty-six steers branded ‡‡ on the left side, and fish or dovetail earmarks, of the value of $42.50 each, and of the aggregate value of $1,105.00; ten heifers, branded ‡‡ on the left-side, and fish or dove tail earmarks, of the value of $25 each,, and of the aggregate value of $250. * * *” The jury did not award any damages for the detention of the property.

The judgment ordered that the plaintiff have and recover the property described in the verdict, or be compensated by the defendant according to the value fixed in the verdict. From, this judgment the defendant appealed.

The appellant specifies as error, first, that the court erred'' in entering judgment, for that the complaint does not state-facts sufficient to constitute a cause of action, alleging four-grounds: (1) That there is not any allegation that the plaintiff was the owner of any of the cattle at the time of the taking; (2) that there is not any allegation that at the time of the alleged trespass or of the commencement of the action the plaintiff was in possession or entitled to the possession of any of the-cattle; (3) that there is not any allegation that at any time-before or subsequent to the commencement of the action the-plaintiff was or is entitled to the possession of the property; and (4) that the complaint is so vague, uncertain and indefinite-in the description and identification of the property as to-wholly fail to sustain the judgment.

We have been somewhat loath to declare the complaint snfficient, but we believe it was not vulnerable upon general demurrer; being of the opinion, however, that, if a special demurrer had been made, it should have been sustained. By-fair intendment, we think that the complaint implies that at the time of the demand, on the 10th of March, the plaintiff was the owner, and thereafter was such, and entitled to the possession, up to and at the time of the commencement of the action. Although the complaint was not filed until nearly two months after March 10, 1902, yet it does not appear that it was not verified upon the day the action was commenced, and we infer that the allegations as to ownership and wrongful detention relate to the time of the commencement of the action as well as to the time prior. 1

The second specification is that the court erred in entering judgment on the verdict, for that the verdict is so vague, indefinite, and uncertain as to fail to sustain the judgment. Seven reasons are assigned. Some of these reasons go to the fact that the verdict does not find for the plaintiff in the full number of animals claimed; the number mentioned in the verdict being twelve less than those demanded in the complaint. This being an appeal from the judgment, and we not having the evidence before us, we must presume that it showed that these were all the animals defendant had that belonged to the plaintiff.

Under this specification, appellant complains that the verdict does not find that at the time of the commencement of the action the plaintiff was the owner or entitled to the possession ■of the property. We do not understand that in a verdict a jury is expected to make any such statement in terms. A gen-oral verdict implies a finding upon each material issue.

Further complaint is made under this head that the verdict is not responsive to the issues, in that it places on the twenty-nine (twenty-six?) head of steers a valuation in excess of the amount alleged in the complaint. Plaintiff alleges in the complaint that there were thirty-five steers and cows, of the value of $1,200. The average value of these thirty-five animals is less than the value per head found by the jury as the value of oach of the twenty-six steers mentioned in the verdict, but their totál value, to wit, $1,105, is less than the total value of the thirty-five animals of which the twenty-six were a part. It is to be presumed that the evidence supports the verdict in this behalf.

As to the other reasons under this head referring to the verdict, it is sufficient to say that we find that the verdict is supported by the pleadings, and presumably by the evidence.

The third, fourth, and fifth specifications attach the instructions of the court, which are few in number, and not numbered. We have examined the instructions, and find that they are not prejudicial to the defendant but that, if judgment had gone against the plaintiff, he might have found fault with them, for the reason that they require the jury to find more than it was necessary for him to prove.

Although there is not any express allegation in the complaint that at the time of the taking the plaintiff was the owner, or any express statement that he was entitled to the possession, of the property, still there is a declaration that at the time of the demand he was the owner, and was such up to the time of the making of the complaint, and, in the absence in the record of anything to the contrary, presumably up to the time of the commencement of the action; and it is fairly implied in the complaint that he was entitled to the immediate possession at the time of the commencement of the action, and that he was being unlawfully kept out of such possession by the defendant. The complaint seems to be one in detinet, and not in cepit. Such being the case, it would seem that the court erred against the plaintiff, and not the defendant, when it instructed the jury to find as to whether the plaintiff was “at the times mentioned the owner of any of the cattle”; thus erring against the plaintiff in requiring that he prove that he was the owner at least at one date immaterial in a proceeding in detinet.

We do not think that the judgment is, as appellant complains, so vague and uncertain in the description of the property as to render it impossible to identify the animals and enable the defendant to make a return thereof. The presumption, of course, is that the evidence showed that the cattle mentioned in the complaint were marked and branded as stated in the verdict, and that the number of animals found by the jury were all that the defendant had, so marked and branded, belonging to the plaintiff.

Rehearing denied October 12, 1905.

We do not find any error prejudicial to the defendant, and the judgment is affirmed.

Affirmed.

Mr. Chief Justice Beantly and Me. Justice Holloway concur.  