Opinion
Department Two
Appeal from a judgment of the Superior Court of Calaveras County.
COUNSEL:
The cause of action disclosed by the complaint is for goods sold and delivered; that disclosed by the findings is replevin. Plaintiff's theory is that he is entitled to waive the tort, and sue in assumpsit. But this is true only when there has been an actual conversion. (Fratt v. Clark , 12 Cal. 90; Roberts v. Evans , 43 Cal. 382; Boyer v. Ballard, 16 Rep. 246; Jones v. Hoar, 5 Pick. 285; Willet v. Willet, 3 Watts, 277; Morrison v. Morrison , 2 Ill. 317; McKnight v. Dunlop, 4 Barb. 43.) Defendant Parsons was a copartner with plaintiff; hence, plaintiff could not sue at law, either for a conversion or in replevin.
Langhorne & Miller, for Appellants.
Ira H. Reed, for Respondent.
JUDGES: Thornton, J. Sharpstein, J., and Myrick, J., concurred.
OPINION
THORNTON, Judge
The findings I, II, III, and IV show that defendant Parsons was either a partner with the plaintiff in working the mine, and therefore owning an interest in the property sued for, or a tenant in common with plaintiff in such property. In either case, Parsons was as much entitled to the property sued for as the plaintiff. How, under these circumstances, there can be any contract of sale implied by law, we are unable to see. No facts are found from which a sale can be inferred or implied.
No conversion of the property is [6 P. 690] found. The only fact found is, that Parsons and Thrift took possession of the property, which Parsons had a right to do, as he was as much entitled to the possession as the plaintiff. Plaintiff's rights are not enlarged, because Parsons had Thrift with him and aiding him when he took possession.
The lien of a partner, mentioned in section 2514 Civil Code, does not give to either partner a right of possession to the partnership property, to the exclusion of the other from such possession. The lien has no connection with the possession. It exists independent of possession. If one partner is in actual possession of the property of the partnership, claiming to hold it against the other, the lien still exists in favor of the other partner out of possession, in the case specified in the section above cited.
Nor does it make any difference that the partnership has come to an end. One partner is as much entitled to the possession as the other.
In any view we can take of the case, the plaintiff and Parsons are equally entitled to the possession.
As to defendant Thrift, conceding that plaintiff is entitled to the possession of his interest in the property of the partnership as against him, he cannot recover it either of Thrift or Parsons in an action for goods sold and delivered, as this is.
The judgment is reversed, and the cause remanded to the court below, with directions to enter judgment for defendants.