Daggett v. Gray

Citations

• 110 Cal. 169
• 42 P. 568
• 1895 Cal. LEXIS 1035

Syllabus

<p>Conversion of Goods—Pleading—Demand and Refusal.—A complaint alleging that the plaintiff was the owner and lawfully entitled to the immediate possession of a stock of goods at a date specified, upon which date defendants, then being in possession of said goods, unlawfully converted and disposed of the same to their own use, whereby plaintiff sustained damages in a specified sum, sufficiently states a cause of action as against a general demurrer, and is not defective by reason of a failure to allege that the plaintiff had made a demand upon defendants for the property, and that there was a refusal on their part to comply with such demand.</p> <p>Id.—Evidence of Conversion.—A demand and refusal do not of themselves constitute conversion, but are only evidence from which conversion in certain cases may be found; and a conversion may be established by proof of other acts on the part of a defendant concerning the property, and if the relation of the defendant to the property is such that a previous demand is essential in order to establish conversion, such demand must be proved at the trial, but need not be alleged.</p> <p>Id.—General Allegation of Conversion.—Where conversion is alleged as a fact in general terms, it is sufficient to admit of any evidence on the trial that tends to establish such conversion, and the plaintiff is not bound to allege the particular act or acts which constitute the conversion.</p> <p>Id.—Waiver of Grounds of Special Demurrer.—Objections to a complaint which are grounds of special demurrer are waived where the demurrer is general and no special grounds are specified therein.</p> <p>Id, — Aider of Complaint by Answer. — An omitted allegation in the complaint may be aided by an averment of that fact in the answer, so as to uphold a judgment thereon, even though a demurrer to the complaint for the want of the fact had been erroneously overruled.</p> <p>Id.—Allegation of Demand—Waiver of Omission.—A claim by a bailee in his answer of the ow