Page v. Jones

• Decision Date: 26 May 1920
• Docket Number: No. 2391.,2391.
• Citation: 26 N.M. 195,190 P. 541
• Parties: PAGEv.JONES ET AL.
• Court: New Mexico Supreme Court

26 N.M. 195

190 P. 541

PAGE

v.JONES ET AL.

No. 2391.

Supreme Court of New Mexico.

May 26, 1920.

Syllabus by the Court.

If intermixed property is of the same kind, quality, and value, and if no advantage will result to either party by getting the identical property owned by him, even if that were possible, replevin will lie for the number or quantity owned by the plaintiff, to be taken out of the mass, where the proof shows the quantity or portion to which each party is entitled, and the intermingling was not brought about by the wrongful or fraudulent act of the party seeking relief.

Where a confusion of goods is occasioned by the negligence of one, but the goods confused are of equal and uniform value; that is, when the mixture is approximately homogeneous, the party responsible for the confusion does not forfeit his interest in the goods, where there has been no fraud or intentional wrongdoing, and the evidence clearly shows the portion contributed by each of the parties.

Sections 41 and 42, Code 1915, which authorize the recording of partido contracts, are permissive and not mandatory, and a failure to record such a contract does not render the same void as to subsequent purchasers or mortgagees without notice.

Appeal from District Court, Quay County; Leib, Judge.

Action of replevin by Jennie P. Page against H. B. Jones and another, in which defendants gave a forthcoming bond and retained possession. Judgment for plaintiff for the property or for an alternative money judgment, and defendants appeal. Reversed and remanded, with directions.

If intermixed property is of the same kind, quality, and value, and if no advantage will result to either party by getting the identical property owned by him, even if that were possible, replevin will lie for the number or quantity owned by the plaintiff, to be taken out of the mass, where the proof shows the quantity or portion to which each party is entitled, and the intermingling was not brought about by the wrongful or fraudulent act of the party seeking relief.

E. R. Wright and J. J. Kenney, both of Santa Fé, for appellants.

Ed F. Saxon, of Tucumcari, and H. A. Kiker, of Raton, for appellee.

ROBERTS, J.

Appellee sued appellant in replevin, seeking to recover possession of 740 head of sheep of varying ages. The writ was issued, and appellants gave a forthcoming bond and retained possession of the sheep. An answer was filed, and the cause put at issue, and was tried to a jury. Judgment was rendered for the appellee for possession of 550 ewes, 60 lambs, and 50 head of old ewes, and judgment for $5,000 in the alternative. From this judgment appellants appeal.

The facts out of which the controversy arose may be briefly stated as follows: During the lifetime of P. R. Page, the husband of appellee, he had with one Santiago Giddings for many years a number of sheep on “partido” contract. He died some time prior to October, 1915, at which time his widow, appellee here, made the partido contract upon which her right to the possession of the sheep in question here is dependent. Under this contract she let to Santiago Giddings 600 head of ewes of different grades, the contract stipulating that he should use upon such sheep a designated earmark, which should also be placed on the increase. Giddings testified in the court below as a witness for appellee substantially to the following effect: That the earmark which he was required to use on the Page sheep by the terms of the contract was his own individual earmark; had been used by him for 30 years, and that such mark had never been recorded; that the earmark originally was the earmark of Jose A. Baca; that he had for a long number of years also had on partido contract some 900 head of sheep belonging to the said Baca, and that he had also had about 550 head of sheep belonging to the daughters of William B. Giddings, his brother, which he was running on partido; that all of these sheep, including the “Page sheep,” had for many years been in the same earmark. Giddings bought the Baca sheep and the sheep belonging to his nieces some 2 or 3 years prior to the institution of this suit. He continued to run them all in the same earmark, and borrowed the money from the appellants to pay for the sheep so purchased, giving them back as security a chattel mortgage on the sheep. Two very dry years resulted in a great loss of sheep, so that Giddings had less than 1000 sheep left shortly prior to the institution of this suit. Appellants took possession of the whole flock of sheep under their mortgage, and appellee brought this action to recover possession of the sheep which Giddings had from her on partido. The effect of the judgment was to give Mrs. Page all the sheep which she was entitled to under the partido contract, with possibly a slight exception, putting the entire loss upon appellants or Giddings.

[1] Consideration of three questions will dispose of this case. Appellants argue first that replevin was not the proper remedy. In the case of Gonzales v. Ilfeld, 185 Pac. 1110, sheep let under a partido contract and intermingled with other sheep all marked with the same brand were replevied. There it was shown that all the sheep were of the same kind or quality, and that it was impossible to distinguish the sheep let under the different partido contracts. The point as to whether replevin was the proper remedy was not discussed by the court, although argued in the briefs. But this court must have considered that it was the appropriate remedy, otherwise it would have held that it was not.

In 23 R. C. L. p. 862, the rule is stated as follows:

“The general rule is that if property intermixed is of the same kind, quality and value, and if no advantage will result to either party by getting the identical property owned by him, even if that were possible, replevin will lie for the number or quantity owned by the plaintiff, to be taken out of the mass, when the mingling was not brought about by his act.”

The rule deduced from the authorities we believe may be stated as follows: Where the common mass consist of fungible goods--that is, where each article is exactly like the other, such as oil in a tank, or grain in a bin, and the plaintiff is able to specify the number of articles in such mass belonging to him--an exception is made to the general rule, and the plaintiff is permitted to maintain replevin. See, also, 34 Cyc. 1359; Fines v. Bolin, 36 Neb. 621, 54 N. W. 990, and case note to the case of McDonald v. Bailey, 37 L. R. A. (N. S.) 267.

Here so far as appears the sheep put into the common mass were all of the same grade, quality, and kind, consequently appellee was entitled to maintain replevin for such aliquot part of such mass as she was able to show rightly belonged to her.

This then brings us to a consideration of the question as to what part of the sheep she was entitled. The judgment of the lower court gave her practically all of the sheep which she had originally put in the common mass, or rather which had been put into the common mass by Giddings. The most that could be claimed as to the act of Giddings in mixing the sheep belonging to Mrs. Page with the other sheep which he had on partido and afterwards purchased would be that it was negligently done. There is nothing in the evidence upon which to base any other claim. No fraudulent purpose or improper motive was shown or claimed.

[2] The rule is that where one fraudulently, willfully, or wrongfully...