On Rehearing.
Per Curiam.Upon motion for rehearing the plaintiffs and an amicus curiae ask us to modify our opinions in two respects:
First. They say that plaintiffs do not claim that their sheep were among those mortgaged; Second. They say that the sheep in question were not turned over to defendants, but were taken by them.
Our interpretation of the finding of the court was and is that the sheep were mortgaged, and were delivered to Clay, Robinson & Co. If they were either mortgaged or delivered, the judgments heretofore ordered by us to be entered were correct. If they were neither mortgaged nor delivered, the partido contracts between Jordan and plaintiffs were not violated by him or his administratrix, and the right of possession in those cases in which the contract had not matured when suit was begun remained in him or her, was not in plaintiffs and their actions would not lie. The finding of the court was general, and we must assume that it found the facts which would sustain the judgment. If the evidential details in the pleadings of the parties on these two points are to be regarded at all, each party has pleaded against himself, and we take the findings of the court.
By reason of the affirmance of the judgments in these cases and the denial of the writ of prohibition in case No. 10,661 (74 Colo. 40), the trial court will not require the sums here involved to be paid twice by plaintiffs in error.
In the case against Bardsley the defendants urge two points: First. That the complaint does not state facts sufficient to constitute a cause of action; and second. That there was a variance between the complaint and the proof as the proof has been interpreted in the opinion.
Upon the first point: We think the complaint states a cause of action. It alleges the plaintiff’s ownership, and *17taking and unlawful detention by the defendant. This is all that is necessary in replevin (Baker v. Cordwell, 6 Colo. 199), except the allegations of time, place and value, the omission of which, if they are omitted, does not subject the complaint to a general demurrer. All the remainder of the complaint should have been omitted.
On the second point: The claim is made that since the allegation was that the plaintiff put his sheep into Jordan’s hands to be held by him, Jordan, on shares, and to be returned on demand, and since the proof as- interpreted by this court was that Jordan actually did, acting as an agent, in Bardsley’s name, deliver the sheep to certain third parties upon partido contracts, there was a fatal variance. If this would be fatal at common law, it is not in this state under the Code. See Walsh v. Hastings, 20 Colo. 243, 38 Pac. 324; Oligarchy Ditch Co. v. Farm Inv. Co., 40 Colo. 291, 88 Pac. 443. The substance of the complaint was proved; that is, that the plaintiff Bardsley owned and was entitled to the possession of the sheep, that the defendants took possession of them and withheld them from the plaintiff.
The motions for rehearing are denied.