112 Cal. 369 | Cal. | 1896
Lead Opinion
Action of claim and delivery to recover the possession of certain trays and sweat boxes.
Upon the foregoing issues the evidence in behalf of the respective parties was decidedly conflicting, and the verdict of the jury thereon cannot be disturbed.
For the purpose of sustaining the defendant’s claim that the sale by Vieu to the plaintiffs was with the intent to defraud his creditors, evidence was introduced tending to show that the' sale was made in consequence of an effort by Fon Kee to collect the amount of his claim; and a telegram, dated April 5, 1893, and directed to Vieu at Dixon, which Mr. Spencer, a witness on behalf of the defendant, testified that he wrote and sent for Fon Kee, was offered in evidence. This telegram is as follows:
“April 5, 1893
“N. Vieu, Dixon, Cal: Your note is past due. You no pay me, I commence suit. Fon Kee.”
The plaintiffs objected to the introduction of this telegram, on the ground that it was irrelevant, immaterial, incompetent, and could in no way bind them. Their objection was overruled and the telegram admitted in evidence, and this ruling is now assigned as error. It had already been shown that Vieu made the bill of sale to the plaintiffs on the sixth day of April; that Ettlingér, one of the plaintiffs, who resided at San Francisco, met Vieu at the ranch in Fresno on that day by previous
In the specifications of errors of law the plaintiffs assign the admission of this telegram in evidence “for the reasons assigned at the time, and for the reason it is not shown that plaintiffs had any knowledge whatever of any such action, or that said telegram was ever received.by Napoleon Vieu.” These latter objections were not made at the time it was offered, and, although the defendant stated to the court that he intended to show that the telegram had been received by Vieu, it was not necessary that any direct evidence of its receipt should be given. The rule has long been settled and is made statutory in this state (Code Civ. Proc., sec. 1963, subd. 24), “that a letter duly directed and mailed was received in the regular course of the mail.” The same rule has been extended to telegrams. (Wharton on Evidence, sec. 1329; Greenleaf on Evidence, sec. 40; Gray on Telegraphs, sec. 136; Commonwealth v. Jeffries, 7 Allen, 548; 83 Am. Dec. 712; Oregon S. S. Co. v. Otis,
The testimony given by Ah Loo; of statements made by Vieu of his object in moving the trays, was properly received. Burton had testified that Vieu was present during the moving of the trays; and Pourtett had testified that Vieu had directed him to move them, or help to move them, and these statements of Vieu were made before the sale had become complete by delivery, and while the trays were being moved. They were, therefore, a part of the transaction, and were admissible for the purpose of throwing light upon its character, and enabling the jury to determine whether the sale was bona fide, or with the express intent to defraud his creditors.
The testimony of the witness Schleyer that she had made a statement at Vieu’s request for Fon Kee, even if immaterial, could not have prejudiced the plaintiffs.
The judgment and order are affirmed.
Dissenting Opinion
dissenting.—I dissent, and adhere to the conclusion reached in Department.
Rehearing denied.
The following is the opinion of Department Two, rendered on the 7th of November, 1895, referred to in the dissenting opinion of Mr. Justice McFarland.
Plaintiffs brought this action against defendant, who is the sheriff of Fresno county, to recover possession of a quantity of trays and sweat-boxes used in the curing of raisins. It is alleged in the complaint that plaintiffs own the property, and that defendant took the same from their possession. Defendant, by his answer, denied plaintiff's ownership and possession; alleged that he seized the goods under a writ of execution upon a judgment recovered by one Fon Kee against one Vieu; that Vieu was the owner and in possession thereof at the time of such seizure; that plaintiffs took the goods from him, defendant, at the commencement of this action; and prayed a return of the same. The plaintiffs claim under a bill of sale made to them of the property by said Vieu on April 6, 1893; the levy by defendant was in November, 1893. The defense is that the sale was void because of constructive fraud in that it was not accompanied by an immediate delivery and followed by actual and continued change of possession of the chattels; and also because of actual fraud, in that the sale was designed to hinder and delay the creditors of said Vieu—especially said Fon Kee. A jury trial was had, resulting in a verdict and judgment for defendant.
Assuming that evidence to show the sale to be fraudulent in fact was admissible under the issues, then it was rlevant to prove that Vieu, the vendor, entertained the fraudulent intent to hinder and delay his creditors (Landecker v. Houghtaling, 7 Cal. 391); accordingly, Mr.
Immediately after the execution of the bill of sale the plaintiffs began the removal of the trays and boxes from Vieu’s ranch, where they then were, to a neighboring ranch; Vieu did not participate in this work; as between him and the plaintiffs—his vendees—it appears that the sale was complete upon the delivery of the instrument evidencing the transfer. One Ah Loo testified in effect that Vieu told him the goods were removed because he, Vieu, was afraid somebody would stop the removal—prevent any transfer; this declaration, so far as can be gathered from the statements of the witness, occurred after the removal of the trays, etc., had been completed, and was certainly subsequent to the delivery of the bill of sale; it is not claimed that plaintiffs heard or had knowledge of it; its admission in evidence was therefore erroneous. (Jones v. Morse, 36 Cal. 205; Walden v. Purvis, 73 Cal. 518.)
As to the testimony of the witness, Marie Schleyer, that she, at Vieu’s request, made out a statement for Fon Kee, “to show how much money had been taken in,”
The errors noted may have been of not much consequence; but the evidence, as presented in the record, tending to show fraud, whether actual or constructive, was at best inconclusive, and the jury may have accorded controlling weight to the evidence erroneously admitted.
The judgment and order should be reversed.