22 P. 1132 | Cal. | 1889
This appeal is taken from the judgment and an order denying a new trial. The appeal from the judgment
“San Francisco, 4 | 3, 1885.
“Mrs. E. M. Bunting,
“To John A. Bunting, Dr.
“(1) 4-horse Concord (built).....................$260 00
“Rec’d payment,
“JOHN A. BUNTING.”
It was given as and for a bill of sale. The wagon, during the time it rested under the levy made upon it, remained on the ranch in charge of a keeper. When the levy was released, it was left, as before, in the possession of John A. Bunting’s wife, who claimed it then, as she had always since the transfer of the land to the mother of her husband, as plaintiff’s property. Mr. Overacker and his daughter, Mrs. F. O. Bunting, declared that the wagon was considered by them (and so, also, says John A. Bunting), from the time of the transfer of the ranch, as his mother’s,, and they all treated the conveyance of the land as good and valid in law, and the wife held actual possession of the land and the wagon, openly, as the property of the plaintiff; and after the transfer, having dealings with Salz, one of the defendants, in selling the products of the farm, he never claimed any right to offset any debt he owed for such produce with the indebtedness of John A. Bunting to Salz and Niehaus. But it appears that the wife had, in the year
The jury who tried the case found a verdict-for the plaintiff in the sum of $525. The defendants contend that the evidence was insufficient to justify the jury in their action. An examination of the record satisfies us to the contrary.
Again, it is said that the court erred in allowing evidence to be introduced as to the cost price of the wagon. The cost price of the property, while not conclusive as to its value at the time of its conversion, is nevertheless a circumstance which is admissible to aid in arriving at the value at the time in question: Angell v. Hopkins, 79 Cal. 181, 21 Pac. 729. It is further objected that the alleged bill of sale, heretofore set out, was inadmissible in evidence, it being claimed in this connection that it did not purport to be a bill of sale of the wagon in dispute. The objection was not well taken. The memorandum in writing, signed by the party who is alleged to have made the sale of the Concord wagon in dispute, tended to throw light upon the matter of the sale of the wagon, and in that view, if no other, it was proper to go to the jury.
The appellant complains, also, that the trial court committed error in not striking out, upon his motion, the evidence of Mrs. F. 0. Bunting, the wife of John A. Bunting, showing that in 1883, just after the transfer of the ranch, she, as the agent of the plaintiff, took possession of the wagon. There
Further, the appellants claim that certain instructions given for them, and another by the court of its own motion, being correct expositions of the law applicable to the facts of the case, are contradictory to instructions asked by the plaintiff and granted by the court, by which the jury were misled. The plaintiff’s theory of the ease seems to be, that no change of possession was necessary, if the property at the time it was sold was in the possession of a third party, which party, at the request of the vendor and vendee, agreed to retain its possession for the vendee, while the defendant’s contention was that the vendor always had possession, and had not transferred it, as the law requires, to the vendee, under section 3440 of the Civil Code. The view of the law taken by the plaintiff is correct, according to the opinion of the appellate court in Williams v. Lerch, 56 Cal. 330. The instructions are not contradictory; they simply tell the jury what the law is, if they should believe the evidence to sustain either the plaintiff’s or defendant’s theory of the case. While it may be said that some of the instructions given did not lay down the law as broadly as might have been done, yet, when we come to construe them as a whole, we do not find that the court committed any error likely to mislead the jury.
The defendants further complain that certain instructions asked for by them and refused should have been given. Time and space do not permit of the discussion of them in detail, but from a careful inspection it appears to us that such of the
We think the facts of this case are such that a jury may well have found as they did. Perceiving no prejudicial error, we advise that the appeal from the judgment be dismissed and the order affirmed.
We concur: Belcher, C. C.; Hayne, C.
For the reasons given in the foregoing opinion the appeal from the judgment is dismissed and the order affirmed.