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account had been stated, under the second. I do not deem it necessary, from the view I take of the case, to decide this point.

I may assume all that has been said by my brother Twiss in the majority opinion to be a correct statement of the law, where the proper case for such law is presented; but in this case, I take it the argument by him has no application whatever. All that has been said by the majority of the court as regards the stating of an account by implication from the fact of the mailing of the account to the defendant Hampton. at Frisco appears to me to be an evidence that the actual case as presented by the evidence was overlooked by them. If, as they assume, the plaintiff had depended upon the establishing of an account stated by showing that the same was made out and mailed to defendant at his place of residence in another part of the territory, it would possibly have been necessary to have shown that there was a mail between the two points, and the usual time it would take for a letter to go from the point of mailing to the point of destination. But this is not the case made by the record. It of course does appear from the testimony of the plaintiff that the account marked "Exhibit A" was so made out and mailed; but it is further shown that this same account was the subject of conversation between the plaintiff and defendant Hampton; that in that conversation Hampton admitted that he had received the account, and that it was correct.

Now, if this does not make an account stated by the positive and uncontradicted statements of the defendant, it would be very hard indeed to find a case where proof could be made that an account had been stated between parties at all. It makes no difference that the account as sent to Hampton was, for a page or two, against Bicknell and Morrisson, as that was balanced up and the balance brought down and charged to the defendants in this case as the first item of the charge, and in pursuance of the agreement between the three defendants to this action, as sworn to by one of them, H. O. Bicknell. It will not do to say that, because this account, as claimed by plaintiff to have been sent to Hampton, his admission that the same had been received by him, that it was correct, and that he owed it (except possibly a matter of two hundred dollars,

which he claimed should have been credited to him), had the names of Bicknell & Morrisson and their account preceding it, Hampton can so trifle with justice and escape upon what does not appear to me to be even a technicality.

In addition to the foregoing facts, which appear on the record of this case on pages 29, 42, and 43, it is also shown. that plaintiff's counsel gave notice to defendants to produce the statement of the account so admitted to have been received, and the same was by them produced in court, thus removing all doubt upon the question of his having so received it. The testimony further shows that the conversation which took place between plaintiff and defendant has reference to this document, and none other, as the witness first examined identifies it as the one he sent, and then says: "This conversation was about the one you hold in your hand, and he admitted that account to be correct."

How any stronger case could have been made to show an account had been stated is, as before stated, beyond my comprehension; and why the majority of the court could have overlooked or disregarded all these facts is something I do not very clearly understand. From their opinion, I gather the idea they have assumed there is no evidence tending to show an account stated, except by presumption, from the testimony, which shows that this account was made out and mailed to the defendant Hampton at Frisco, his place of residence. I might have been willing to have concurred with my brothers if such had been the only evidence. On the trial, the evidence tending to prove an account stated was excluded on the ground of variance between the form of the account declared on and the form of the one attempted to be proved. It was claimed and ruled that because the writing containing the account began with the words, as a heading, "Bicknell & Morrisson," there was a variance from the allegation, which stated generally that there was an account stated between plaintiff and defendants. I can not agree with this view.

No particular form of account was alleged, and none was necessary. If the minds of the parties met on any balance, that would be an account stated; and any evidence tending to show that their minds did meet would be pertinent in what

ever form it might be stated. It might ostensibly be made to third parties entirely, or it might have no heading at all, containing merely rough figures, or it might be verbal, and not even in writing. Certainly, the objection of variance would not be good when no particular form is alleged in the complaint.

HILL ET AL. v. SEAGER.

ONE OF TWO OR MORE JOINT OWNERS OF PERSONAL PROPERTY INCAPABLE
OF DIVISION can not maintain the action of replevin against his co-

owners.

APPEAL from the first district court. The opinion states the facts.

Ransford Smith, for the appellants.

Williams & Renick, for the respondent.

TWISS, J.:

This is an action to recover possession of a horse described in the complaint, and therein alleged to be the joint property of the plaintiffs and the defendant, who were jointly entitled to the possession of the same; but that the defendant, being in possession thereof, converted it to his own use, and refused to permit the plaintiffs to use, or to exercise any control over, or to have possession of the horse, either by themselves or jointly with the defendant; that the plaintiffs, being entitled to the immediate possession of the horse, demanded possession of the same of the defendant, who refused to deliver it to them. Whereupon they pray judgment for the possession of the horse, or in case it can not be delivered, for the value thereof, the sum of one hundred and fifty dollars.

To this complaint the defendant demurs, and assigns among other grounds of demurrer, "that the complaint does not state facts sufficient to constitute a cause of action."

The statutes of this territory have somewhat changed the law of replevin, but contain no provision sufficiently radical to permit one joint owner to replevy from his co-tenant or

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joint owner their indivisible property, the possession of which one of them is as much entitled to as the other.

The rule of law, that indivisible personal property owned by one or more joint owners, or tenants in common, can not be replevied by one or more of such owners from the other or others, is quite uniform and almost without exception: Wells on Replevin, 86, and note; Davis v. Sottich, 46 N. Y. 393; Walker v. Fenner, 28 Ala. 373; Kimball v. Thompson, 4 Cush. 441, 447.

The plaintiffs rely upon Schwartz v. Skinner, 47 Cal. 6. This case was under a statute providing that tenants in common "may jointly or severally bring or defend any civil action for the enforcement or protection of the rights of such party," and was in form replevin for seventeen thirtieths of the furniture used in a hotel; the complaint also containing all the allegations essential in trover, all of which were sustained by the findings, and the findings expressed all the facts in the case. The court reversed the judgment of the district court, which was for the defendant, "with direction to render judgment for the plaintiff on the findings."

That case is distinguishable from this in this respect: it was brought to recover a certain specified part of a property susceptible of division, but it is unsatisfactory in any view that may be taken of it as an authority in this case; especially if read in the light of Hewlett v. Owens et al., 50 Cal. 474, in which the court, speaking of the parties, says: "Being tenants in common, neither could, under the circumstances appearing in this case, maintain replevin against the other, nor against the vendee of the other." This is in harmony with the almost unbroken current of authority, and not inconsistent with the California statute.

If a joint tenancy of the plaintiff and defendant in the demanded property is disclosed by the allegations of the complaint, the suit can not be maintained: Wells on Replevin, 85, 154; and under our practice act the issues tendered by such allegations may be raised and decided on demurrer: Comp. L., sec. 1265.

The judgment of the district court in sustaining the demurrer was correct, and should be and is affirmed.

HUNTER, C. J., and EMERSON, J., concurred.

FARNSWORTH ET AL. v. HOLDERMAN.

PLEADINGS UNDER THE CODE.-Pleadings under the code should be liberally construed with a view to substantial justice between the parties. A complaint is sufficient which contains, in ordinary and concise language, allegations of such constitutive facts as will entitle the plaintiff to prove and maintain his case, and give the defendant opportunity to meet and controvert the alleged facts relied upon by the plaintiff. PLEADING-CONTRACT- PERFORMANCE

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ACCEPTANCE-WAIVER.-A plaint which pleads an executory contract for the sale and delivery of "about nineteen hundred head of cattle, more or less, as plaintiffs were able to deliver," coupled with an allegation setting up a delivery to and acceptance by the defendants of "about seventeen hundred and fortyfour in full for the number to be by plaintiffs delivered under the contract or agreement," and the promise to pay for the same, is supported by evidence of a contract by the terms of which plaintiffs sold and were to deliver about nineteen hundred head of American cattle of certain specified kinds and classes, to be paid for by the defendants at a price per head as classed, and of the defendants' acceptance of the smaller number, together with a promise to pay therefor; and this, even though the smaller number so delivered contained classes not mentioned or described in the contract, or pleaded in the complaint, and the acceptance of which, together with the prices agreed to be paid for the same, were arranged for at the time of the delivery under the contract.

THE JUDGMENT OF THE TRIAL COURT WILL NOT BE REVERSED BECAUSE ONE OF ITS FINDINGS OF FACT IS AGAINST EVIDENCE, where the finding is immaterial, and has resulted in no injury to the party against whom the fact is found.

APPEAL from the third district court. The opinion states the facts.

Sutherland & McBride, for the appellants

Boreman & Denny, for the respondents.
TWISS, J.:

The plaintiffs in their complaint allege that on or about the seventh day of August, 1882, they entered into an engagement with the defendants, whereby they were to deliver to the defendants about one thousand nine hundred head of cattle, more or less, as they might be able to deliver them; the cattle at the time being upon the range. That plaintiff's have fully complied with said agreement.

That on and prior to the twenty-second day of September, 1882, the plaintiff's delivered and the defendants received all

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