Reargued November 25, decided December 15, 1908.
On Petition for Kehearing.
On rehearing, former opinion set aside and judgment reversed.
Mr. Justice Mooredelivered the opinion of the court.
At a rehearing herein, granted upon a petition therefor, it. appeared that the • abstract of the record, which was employed in lieu of a transcript, did not affirmatively show, that, when the plaintiff’s counsel announced to the court their election to proceed against Taylor and to dismiss the action as to Dickenson, the cause had not been submitted to the jury—a fact that was not observed .at the prior trial. The authority to make such choice is not discussed in the former opinion, but the right to do so was tacitly admitted and the decision placed on the ground that, if an error was committed in denying the exercise of the prerogative asserted, the action of the court in this respect was without prejudice, because the testimony received was insufficient to entitle the plaintiff to a recovery.
*6357. The complaint in the case at bar alleged that the defendants wrongfully took and unlawfully detained the team, which averment is equivalent to an assertion, that when the action was commenced the property in question was in the possession of Taylor and Dickenson.
8. The answer alleged facts which were stated by way of justification for the seizure of the team by Taylor, who, it is averred, delivered the property to Dickenson, the keeper of a livery stable. This allegation is denied in the reply. The defendants’ counsel, referring to Taylor and to what disposition of the property demanded he had made immediately after seizing it, asked M. Krebs, a witness for the plaintiff, the following question on cross-examination: “As a matter of fact, didn’t he tell you where your team was?” To which Krebs replied: “He didn’t tell me where the team was. He left that for somebody else to tell me.” Frank Flakes, as plaintiff’s witness, alluding to a conversation which occurred soon after the property was taken, testified as follows: “Mr. Mike Krebs asked Mr. Taylor if he would get his team. He asked him first if he put his team up. Mr. Taylor said, ‘Yes.’ He asked him if he would get it for him. He says, ‘No, I won’t get it.’ ” From this testimony it is fairly to be inferred that Taylor was not in the actual possession of the property.
9. The remedy of claim and delivery, as prescribed by our statute (Section 284, et seq. B. & C. Comp.) is subtantially the same as replevin, which is a'mixed action, partly in rem and partly in personam, and can be brought only against the person having possession or control of the goods at the time the suit is begun: Wells, Replevin (2 ed.) § 34.
10. At Section 50, Wells, Replevin (2 ed.), the author reasserting this legal principle, and giving a reason therefor, says: “Another important distinction is that in order to sustain replevin the defendant must *636have the actual or constructive possession of the goods at the time suit is commenced; in other words, he must be in a condition to deliver the property when called on by the officer, in obedience to the command of the writ.” If the plaintiff’s counsel had been permitted to proceed as indicated, they might thereafter have introduced evidence tending to show that, although Taylor was not in the actual control of the property when this action was commenced, he had the constructive possession thereof, notwithstanding he had delivered the team to Dickenson, who was holding it subject to his order, which agency would render Taylor liable in replevin: Bradley v. Gamelle, 7 Minn. 881 (Gil. 260). Since this fact might possibly have been established in the manner indicated, the action of the court in denying an exercise of the election mentioned will be considered.
11. A text-writer, discussing ' the legal principle involved, says:' “If two defendants be sued jointly for a tort, and the evidence is not sufficient to hold one, there may be a discontinuance as to that one, and the trial may proceed as to the other. In such case, the joint action does not fail because the tort is not joint, if committed, but for the reason that the evidence fails to show any concert of action”: Kinkead’s Com. Torts, § 57. Judge Cooley, in his work on Torts (3 ed. 227) commenting upon the same doctrine, observes: “And where two or more are sued, one cannot complain because another has been dismissed out of court or been acquitted. Though two or more are sued, and a joint tort alleged, the general rule is that a recovery may be had against one only.” In Smith v. Day, 39 Or. 531 (64 Pac. 812, 65 Pac. 1055), it was ruled that several joint tort-feasors might be sued jointly, when they had united by design or act to produce the injury complained of; but without a common purpose or joint act there can be no joint liability, though the injury was a general result to which *637the acts of each contributed. The cases of Dahms v. Sears, 13 Or. 47 (11 Pac. 891), and Cooper v. Blair, 14 Or. 255 (12 Pac. 370), are cited, inter alia, in support of the rule thus announced. The first case noted appears to have been an action of trover for a conversion originating in acts constituting a trespass vi et armis, which are concurrent remedies: 1 Chit. PI. *161. In deciding that case, Mr. Justice Thayer says: “The defendants in the action were charged with a joint tort, and the plaintiff, in order to maintain it, was compelled to prove a joint conversion.” Further in the opinion, the writer thereof observes: “I think a jury has a right, in cases of tort, where there are several defendants, to find a verdict against a part of them and in favor of the others. * * This, however, does not allow a joint action against defendants for several trespasses. In an action of that character, the plaintiff must elect at the trial as to which of the defendants he will proceed against. If he fail to do that, and submit the case to the jury, he will be entitled to no verdict.” The case of Cooper v. Blair, 14 Or. 255 (12 Pac. 370), was an action instituted against three parties defendant to recover the value of certain quantities of wheat alleged to have been converted. At the trial a judgment of nonsuit was given on the ground that a recovery could not be had because the tort complained of was not the joint act of the defendants. In affirming the judgment, Mr. Justice Thayer, in speaking of them, says: “It must be con-' ceded, I think, that these several companies acted independently of each other in what they did in regard to the taking of the wheat. There is not the slightest trace of testimony in the case, as I can discover, that they combined or co-operated in taking away any wheat from the warehouse in question. The taking was at different times, and clearly several acts, and resulted from their several motives.” In referring to the plaintiff in that *638case, it is further remarked: “He had joined the three parties, the Flouring Mills Co., Henkle & Co., and Hamilton & Co., in a single action, and then attempted to introduce evidence proving a conversion by one of them only. He could only be permitted to prove an act of conversion upon the part of one of the parties, under an offer to show that the others participated in the action in some way, and unless he could make such showing he would be confined to his claim against the one party. Or he might have been pernlitted to show that all the parties took and carried away the wheat at different times, under an offer to show that there had been a combination entered into between them for that purpose, and, if he failed to show the common purpose, he would have had to submit to a nonsuit, unless the court permitted him to amend his complaint and proceed against one of the parties. Section 99 of the Civil Code, Section 102, B. & C. Comp, is broad enough, I think, to have allowed such an amendment; but to attempt to proceed against the respondents jointly on account of a several liability is not warranted by law, in such a case as this.
12. The rule of ' practice to be extracted from the extended quotations thus made is to the effect that, if the plaintiff fail to prove the commission of a joint tort as alleged, he may elect at the trial as to which of the defendants he will proceed against, and can request the court to instruct the jury, if the evidence is sufficient for that purpose, to find a verdict against a part of them and in favor of the others (Dahms v. Sears, 13 Or. 47, 65: 11 Pac. 891) ; or he may move for leave to amend his complaint, and, if granted, proceed against one or more of the parties (Cooper v. Blair, 14 Or. 255, 263: 12 Pac. 370). Thus in Perkins v. McCullough, 36 Or. 146 (59 Pac. 182), which was an action for an alleged conversion, a motion for a nonsuit as to one of the defendants was denied, and, judgment having been rendered as prayed *639for in the complaint, it was affirmed on appeal, on the ground that the evidence was sufficient to authorize a submission of the cause to the jury, thereby impliedly holding that a several judgment could have been given. A different rule seems to prevail in Illinois, where it was held that, a complaint alleging that an injury resulted from the concurrent negligence of two defendants, the fact must be established as averred, and no recovery could be had unless the jury found against both defendants: St. Louis Co. v. Hopkins, 100 Ill. App. 567; Wabash Ry. Co. v. Keeler, 127 Ill. App. 265; Frank Parmelee Co. v. Wheelock, 127 Ill. App. 500. A similar conclusion was reached in Pennsylvania in Wiest v. Electric Traction Co. 200 Pa. 148 (49 Atl. 891), where Mr. Justice Potter, in deciding the case, said: “We are of the opinion that, where a plaintiff, in an action of trespass to recover damages for negligence, declares for a joint tort, and the evidence shows no joint action by defendants, a verdict and judgment against one defendant for a separate tort should not be permitted.” The general rule, however, is the other way, except in actions in which from their nature the tort cannot be joint, as in case of verbal slander (15 Enc. PI. & Pr. 584), and the criterion is to the effect that, where two or more defendants are charged in a complaint with the commission of a joint tort, a recovery may be had against only one of them (Cooley, Torts (8 ed.) 227; 11 Enc. PI. & Pr. 852). At common law, in actions ex contractu, the practice was that if several defendants were joined, and all served with process, or properly appeared before the court, it was an indispensable prerequisite to the plaintiff’s recovery that he should establish a joint liability, for, if he could not sustain the action against one of the parties, their unity precluded the giving of a judgment against any of them: Black, Judgments (2 ed.) §206. This rule, however, was not controlling in actions ex *640delicto, in which, if several defendants were joined, a recovery might be had against as many and only such as were found to be guilty: Black, Judgments (2 ed.) § 207. Our statute, evidently recognizing the latter rule, contains the following enactment: “Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; and it may, when the justice of the case requires it, determine the ultimate rights of the parties on each side as between themselves”: Section 180, B. & C. Comp. “In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, whenever a several judgment is proper, leaving the action to proceed against the others”: Section 181, B. & C. Comp.
It will be seen, from an examination of the provision last quoted, that, when the action is to be continued against one or more joint defendants, the rendering of a judgment against the others is a matter within the discretion of the trial court. This liberty of judgment is not expressly authorized by the preceding section, and, in view of the ancient rule governing actions ex delicto, we believe the plaintiff was empowered to exercise the election proposed, in denying which an error was committed.
The conclusion announced in the former opinion is set aside, the judgment reversed, and the cause remanded for a new trial. Reversed.