SAMUEL HEWLETT AND LEWIS HEWLETT v. OWENS & MOORE

[No. 5275.] SAMUEL HEWLETT AND LEWIS HEWLETT v. OWENS & MOORE. Tboveb by Tenant in Common.—One tenant in common cannot maintain trover against his co-tenant for a sale of the common property which he is authorized by contract to make, nor will it lie against the person to whom the co-tenant sold the property. Appeal from the District Court, Fifth Judicial District, County of San Joaquin. The facts of this case are given in Hewlett v. Owens et al. (50 Cal. 475). After the remittitur went down, the plaintiffs move for leave to file an amended complaint, in which Hoerl was made a joint defendant, and which stated a cause of action in trover against the three defendants. The court denied the motion. The plaintiffs then moved for leave to file an amended complaint, stating a cause of action in trover against the original defendants. The court also denied this motion. The cause was then tried, and judgment was- rendered for the defendants. The plaintiffs appealed. W. H. Montgomery and J. H. Budd, for the Appellants. Byers & Elliott, for the Respondents. [MAJORITY — By the Court:] By the Court: On the former appeal we held that under the- circumstances of this case, an action in the nature of replevin could not be supported. (50 Cal. 474.) It is equally plain that trover will not lie against' the original defendants. Nor can trover be maintained against Hoerl, the former co-tenant of plaintiffs, the alleged “conversion ” consisting of a shipment and sale, which, by the terms of the contract between him and the plaintiffs, he was authorized to make. The court below did not err in its action with respect to the amended complaints. Judgment and order affirmed.