The evidence of Cage and Fitch shows there was a sale and delivery, and a continual change of possession; and again, where the evidence given on the trial of a cause in the Court below, is conflicting, this Court has repeatedly decided the province of the jury is to believe or disbelieve any portion of the testimony, and they will not interfere. (Duell v. Bear River and Auburn Mining Co. , 5 Cal. 84; Taylor v. McKinley , 4 Cal. 104; Amsby v. Dickhouse , 4 Cal. 102; Bartlett v. Hogden , 3 Cal. 55; Charles Griswold v. Sharp , 2 Cal. 17; Hopp v. Robb , 1 Cal. 373.)
The plaintiff, Whitney, sues for four hundred dollars, the amount that the proof shows he paid for the property. Whether that was a wholeor half-interest, I think cannot possibly affect the judgment, as that is the amount of the actual loss sustained by the plaintiff, and, as a matter of course, the exact measure of damage. (2 Greenleaf on Ev., Secs. 253, 261, 266; Co. Lit. 257; 2 Bl. Comm. 438; Brockwood v. Allen , 7 Mass. 256; Bussy v. Donaldson, 4 Dall. 207; Sedgewick on Damages, 2d Ed., 475; Finch v. Blount, 7 Car. & P. 475; Cook v. Hartle, 8 Car. & P. 568.)
JUDGES: Burnett, J., delivered the opinion of the Court. Terry, C. J., concurring.
OPINION
BURNETT, Judge
This was an action of trover. The property was levied upon and sold by the defendant Stark, as sheriff, against E. H. Cage. The plaintiff had judgment in the Court below, and the defendants appealed.
The first error assigned by the learned counsel of the defendants, is that the Court erred in refusing the motion of defendants for a nonsuit. It appeared clearly from the evidence of the plaintiff, that he was only a part-owner of the property,--one Hazelrig having an equal interest with him. All the parties in interest as plaintiffs, should be joined. (Pr. Act, Secs. 12, 14; 1 Chitty's Plea. 65.) But there are only two ways of taking advantage of the non-joinder, when the defect does not appear upon the face of the complaint; and that is either by answer or apportionment of the damages at the trial. (Pr. Act, Secs. 40, 45; 1 Chit. Plea. 66; 9 Mass. 74; 1 Wend. 380.) In equity, the objection should be taken by answer or demurrer. (2 Paige, 280.) Where a part-owner brings an action in form, ex delicto, and the objection is not made by plea in abatement, the other part owner may afterwards sue alone. (1 Ch. Plea. 66.) In this case, the objection was not made by answer. The nonsuit was, therefore, properly refused.
The next point made by the appellants, is that the Court should have granted them a new trial, as the verdict of the jury was against the evidence.
There was some conflict of evidence in reference to some facts; but there was no conflict in reference to the fact that the property was found in the possession of Cage, at the time the levy was made. It appeared that Cage had sold and delivered the property to plaintiff; but, that plaintiff had the property at the stable of Cage, with other property claimed by plaintiff. There was not such a continual change of possession, as to make the title pass as against creditor. (Vance v. Boynton, post 554.)
Judgment reversed, new trial granted, and cause remanded.