We cannot disturb the verdict on the ground of insufficiency of the evidence to sustain it in the particulars specified in the statement.
It is claimed by appellant that the judgment must be *512reversed, because the complaint does not allege a demand of the property claimed before suit brought, and that as the property came lawfully into possession of the defendant, no action can be maintained till a demand is made.
The complaint alleges that “plaintiff delivered the property to the defendant upon an agreement of said defendant to return the same, and the whole thereof, to plaintiff on or before the 13th of August, 1868, and defendant then agreed so to return and deliver said property to plaintiff; and plaintiff avers that said defendant has failed, refused and neglected so to return said property to plaintiff, but hath, since said 13th day of August, A, D, 1868, wrongfully kept and detained the said property, and the whole thereof, from plaintiff, and still keeps and detains the same as aforesaid.” This, it is true, is not a direct positive averment of a demand. A demand is only to be inferred from the allegation that the defendant agreed to return the property at a specified day, and that he had “refused and neglected ” so to do, but had “wrongfully kept and detained said property.” If, in view of the averments, it was necessary to make a demand, the defect would have been a ground for demurrer or objection to evidence. But the defense is a technical one, at best, and was not raised at all, in any form, in the Court below. The answer first denied the allegations of the complaint, and put in issue the ownership of the property and the agreement alleged. Then it set up an affirmative separate defense, in which it was alleged that the defendant had received the property as security for the payment of certain sums of money which it was averred had not been paid, and that he held it in his own right. This affirmative defense appears to have been the principal point in contest at the trial. I do not see why the principle adopted in Smith v. Shaw (16 Cal. 88), Bolton v. Landers (27 Cal. 104), and Ingraham v. Baldwin (9 N. Y. 46-7), should not be applicable to this case. The defendant put himself in an antagonistic position on the question of title, and rested his defense on that. Had this technical objection been made in the Court below, it could, perhaps, have been readily obviated by amendment. Although the demand is only inferrible from the other allega*513tions, yet the averment is sufficiently general to embrace the demand inferentially; and we should not, in view of the course taken in the answer and at the trial, be justified in reversing the judgment upon this objection taken for the first time in this Court.
It is further insisted that the verdict is so defective that no judgment can be rendered on it. Although the verdict is very informal, to my mind it is perfectly apparent what the jury intended to express. And it is, that they found for plaintiff as to the title and right of possession of the property described in the complaint; that its value was $2,200, and that plaintiff had sustained damages to the amount of $300. It cannot well mean anything else. Besides, when the verdict was read, the plaintiff, as he was entitled to do under Section 172 of the Practice Act, asked the Court to direct the jury to retire and put their verdict in the proper form. Thereupon, the defendant’s counsel waived all objection to the form, and “admitted that said verdict was a finding for plaintiff as to the title and right of possession of the property described in the complaint, assessing the value thereof at $2,200, and assessing the damages for the detention thereof at $300.”
Upon this waiver and admission the Court directed the verdict to be recorded and judgment to be entered accordingly. Clearly, this is the true interpretation of the verdict, and after this waiver and admission, and the subsequent action upon it, when the plaintiff would otherwise have had it corrected, it would be unjust now to reverse the judgment for this informality in the verdict.
The verdict, properly interpreted, finds the particulars required by Section 177 of the Practice Act, in actions, “for the recovery of specific personal property.” The judgment, however, is not in the form prescribed by Section 200. The judgment for plaintiff should be “for the possession, or the value thereof, in case a delivery cannot bo had, and damages for the detention.” The judgment reverses the order, and is that the plaintiff “ have and recover of and from said defendant, Willis Jones, the sum of twenty-two hundred *514dollars, or return to said plaintiff all pipe and other materials,” etc. It does not say who is to return. The grammatical construction would indicate the plaintiff as the one to return it to the plaintiff. A judgment for a return is only appropriate when in favor of defendant. (See. 200.) The judgment in favor of plaintiff should be for the “possession” of the property, etc. The judgment is obscure and informal, and, I think, should he modified so as to conform to the statute.