Moisant

This is an action to recover the value of 156 cords of oak tan-bark, alleged to have been in the possession of and owned by the plaintiff, and to have been wrongfully taken by the defendant and converted to his own use on the fifth day of June, 1888.

It appears from the findings and evidence, that on the eleventh day of January, 1884, one Warren was the owner of a tract of land in Mendocino County, and on that day conveyed the same to the defendant and one Markle, who were partners doing business under the firm name of McPhee & Markle. The. conveyance was by a deed absolute in form, but was intended as a mortgage to secure the payment of about two hundred dollars, then owing by the grantor to the grantees for goods, wares, and merchandise. In May, 1886, the two hundred dollars being still unpaid, Warren made a contract with McPhee & Markle, by the terms of which he *78 was to go upon the land conveyed, and peel tan-bark thereon and put it on the road, and they were to advance to him, to pay the expenses of preparing the bark, not exceeding $5.50 per cord; and when the barb -was ready for shipment, they were to ship it to San Francisco and sell it, and after deducting from the…