ON MOTION FOR REHEARING.
ROBERTS, C. J.Appellant, King, contends that he should be granted a rehearing herein because the court erroneously construed. the testimony given by James Doherty, in that we held that Doherty testified that Martinez told him to take the sheep. Upon a review of the evidence we find that we were mistaken in assuming that this testimony applied to the first demand made by Doherty for possession of the sheep. This statement by Martinez was not made at that time, but subsequently, when the levy was made by the deputy sheriff. But this is wholly immaterial for two reasons:
First, the testimony given by Mr. Martinez is to the effect that at the time of the first demand by Doberty for possession of the sheep with Martinez’s consent the sheép were rounded up and inclosed in a corral, and while so confined Martinez took both King and Doherty to the corral and said to them:
“Gentlemen, there is your sheep. Do whatever you want with them. I have not got enough to turn over. You can handle them as you want.”
. The sheep held by Martinez under "partido” contract with King and Mrs. Milliken bore separate brands, and this action on the part of MJarfinez could only be construed as a delivery of the sheep to the parties and a termination of the contract under which he held them; hence there Could be no merit in appellant’s contention that under the terms of the contract Mrs. Milliken was not entitled to possession of the sheep, assuming that the contract had not been breached.
IThe second answer to the contention is that Doherty testified that he had made demand upon Martinez for the sheep belonging to Mrs. Milliken, but, if we assume, as does appellant, that the contract had not terminated, and Mrs. Milliken had no right to the possession of the sheep at the time the demand was made, appellant is met by the proposition, according to his own evidence and that of Mlartinez, that Martinez had delivered to King possession of the sheep in fulfillment of his "partido” contract with King. In other words, he had turned over to King, not only the King sheep, but all of the Milliken sheep, to make good the loss out of the King flock. This amounted to a conversion of the Mfilliken sheep which he held under his "partido’’ contract, which rendered a demand unnecessary. Kitchen v. Schuster, 14 N. M. 164, 89 Pac. 261. This view of the case renders wholly immaterial the fact as to whether Martinez had taken possession of the sheep prior to the bringing of the action herein and before King attempted to exercise dominion over them.
It is next insisted that the court in some manner overlooked the evidence as to the levy upon the sheep in question made by the deputy, sheriff; his contention being that the deputy sheriff did not actually levy upon all of the sheep in question, because after he had separated 123 lieacl of sheep from the flock he was called away and left instructions that Doherty, who was present, proceed and separate the remainder of the sheep, which Doherty did. He argues that Murray, being only-a deputy sheriff, could not deputize Doherty to act. . But this matter was rendered wholly immaterial by reason of the fact that appellant, King, executed a forthcoming bond and took possession of the sheep.
“Any irregularity in a levy made under a writ of .replevin is cured by defendant giving a bond to return tbe property.” 34 Cyc. p. 1356.
No other ground in the motion merits consideration, and it will therefore be denied; and it is so ordered.
Hanna and Parker, J.J., concur.