| Cal. | Jul 1, 1861
Cope, J. concurring.
We have attentively examined this ease, and find no error in the record, except as hereinafter explained. It is not necessary to examine the various points in detail, as no new principle would be settled thereby. The case does not come within the principle of the case of Taylor v. Robinson (14 Cal. 396" court="Cal." date_filed="1859-07-01" href="https://app.midpage.ai/document/taylor-v-robinson-5434251?utm_source=webapp" opinion_id="5434251">14 Cal. 396). It does not rest with the defendant to inquire whether Cassin properly or improperly used the notes of Virgo owned by Miss Carroll. If she is satisfied with the use made by Cassin of her property, it does not rest with the defendant to inquire into the consideration of the contract with Virgo founded on these notes.
2. There is no good objection to the charge of the Court as to the measure of damages. The latter member of the charge is to be taken in connection with the first portion which it qualifies, and both taken together give the true standard of damages.
3. There was no error in rejecting the testimony as to the auction sale.
4. The judgment is erroneous in giving interest at ten per cent, per month on the value of the goods. This is, perhaps, a clerical error.
The judgment will be modified accordingly at the cost of the appellant.
The judgment so modified is affirmed.
On petition for rehearing, the opinion of the Court was delivered per the same Justices.
Rehearing denied. When we modify the judgment below for an apparent error, which the counsel for appellant might have corrected below by specific motion for that purpose, we think it not equitable to tax the costs to the respondent. Our practice has' been heretofore as in this instance.