123 Cal. 625 | Cal. | 1899
The action is to recover the possession of certain eighteen boxes of dressed turkeys (three thousand eight hundred pounds), or the value thereof if delivery cannot be had. The answer alleges that the turkeys were deposited with defendant by one Hoerr, in his own name, for safekeeping, and were the property of said Hoerr and one Clements, partners as Clements & Hoerr. Plaintiff was nonsuited at the close of his evidence, and judgment for defendant was entered accordingly. The appeal is from that judgment upon a bill of exceptions containing the evidence.
Appellant claims that the judgment was erroneous for two reasons: 1. The evidence shows title and right of possession in plaintiff; 2. Defendant is estopped from denying plaintiff’s title.
1. A nonsuit should be denied where the evidence and the presumptions reasonably arising therefrom are legally sufficient to prove the material allegations of the complaint. (De Ro v. Cordes, 4 Cal. 118; McKee v. Greene, 31 Cal. 418; Alvarado v. De Celis, 54 Cal. 588; Felton v. Millard, 81 Cal. 540; Higgins v. Ragsdale, 83 Cal. 219.) The proof must be sufficient to raise more than a mere surmise or conjecture that the fact is as alleged, and must be such that a rational mind can draw from it the conclusion that the fact exists. (Janin v. London etc. Bank, 92 Cal. 14; 27 Am. St. Rep. 82.)
It has also been held that whenever the evidence introduced by plaintiff so conclusively establishes a defense as that the court might properly grant a new trial in case of a verdict in his favor upon like evidence, the court may direct a judgment by way of nonsuit. (McQuilken v. Central Pac. R. R. Co., 50 Cal. 7.)
On January 29, 1895, defendant had on storage at its warehouse in San Francisco a lot of dressed turkeys. One Dunbar, of the firm of J. W. Dunbar & Co., engaged in the commission
“Please deliver to C. Goldstone the following goods: Storage receipt No. E 55, 14 boxes Gob. 3380, Tare 507-2873. Storage receipt No. B, 6 Bxs. Hens, 1310-14-1156.
“J. W. DUNBAR, & CO.,
“M.
“No goods delivered without a receipt properly filled out.”
Plaintiff testified that on receipt of this order he went to defendant and informed the bookkeeper, and was told that they were aware of it, as they had received a duplicate from Dunbar. Dunbar testified that after the sale to plaintiff, defendant segregated plaintiff’s turkeys and marked them E 55; that this was done'before he gave plaintiff the order, and it is inferable that it was done on the 29th of January, when the sale was made, for in the record is a bill for storage rendered by defendant to plaintiff bearing that date, in which the packages are referred to as marked E 55, and the bill shows that plaintiff paid defendant
Defendant claims that Dunbar & Co. had no title, and therefore plaintiff got none; that Dunbar had made a conditional purchase from Hoerr, who, it is claimed, was the real owner, on which Dunbar had paid but two and a half cents per pound, and' there was still due ten cents per pound, to secure which Hoerr had a lien on the turkeys. The evidence on this point is given by Dunbar, plaintiff’s only other witness. He testified that he bought the Goldstone and Miller turkeys from Hoerr. On cross-examination he testified: “I bought them on the 29th of January. There was no specific amount stated at the time; any amount that I could sell. I paid twelve and a half cents per
It clearly appears, we think, that plaintiff purchased from Dunbar & Co. in good faith, in the ordinary course of business, and paid the consideration in full, for the evidence tends to show that the note given for the balance was in payment and was so received. There is no evidence from which it can be said that plaintiff knew or was in any wise warned that there was any claim upon the turkeys by any person other than Dunbar & Co., except it may have been by defendant for storage, and this claim plaintiff paid. In the order given by Dunbar & Co. upon defendant to deliver the turkeys to plaintiff was written: “Ho goods
Respondent claims that this meant to give plaintiff notice and put him upon inquiry as to the outstanding warehouse receipts issued by defendant to Hoerr; and it is claimed that a presumption arises that defendant duly issued receipts as a warehouseman, and dealt with the goods strictly pursuant to the act of 1878. (Stats. 1878, p. 949. Citing Code Civ. Proc., sec. 1963, subd. 33.)
This act contemplates two classes of receipts: 1. negotiable; and 2. Honnegotiable; and in case of the latter class, the warehouseman may deliver the goods upon the written order of the person to whom the receipt has issued. In the former case he can deliver goods only upon presentation of the receipt and indorsement thereon of the goods delivered. We cannot presume that Hoerr’s receipt was of the former class. His giving Dunlap an order for the goods would imply rather that the receipt of defendant, if there was one, was of the latter class.
In the order given to plaintiff is found the words, "Storage receipt Ho. E 55," and “Storage receipt Ho. B,” and it is claimed that these clauses had reference to the defendant’s outstanding warehouse receipts which it was plaintiff’s duty to look after and surrender, and if he had done so he would have learned of Hoerr’s claim. I do not think the words imposed any such duty. They are vague and convey no information to the holder, however intelligible they may have heen to the warehouseman. The reference to "receipt Ho. E 55” was plainly to the segregated lot purchased by plaintiff, and it is impossible to say what “storage receipt B” referred to. We think these references were not such as to put plaintiff on notice or inquiry as insisted by defendant
Dunbar’s testimony as to his purchase from and payment to' Hoerr is somewhat confused and contradictory. The motion for nonsuit admits the truth of plaintiff’s evidence and every inference of fact that can be legitimately drawn therefrom (Wright v. Roseberry, 81 Cal. 87; Warner v. Darrow, 91 Cal. 309); and I think upon such motion the evidence should be interpreted most strongly against the defendant. I think also that the rules as to
This branch of the case is elaborately and learnedly argued by counsel for defendant, occupying the most of a ninety-page brief. It is altogether possible that the facts of the case, if they were all brought out, would show that in law plaintiff ought not to and cannot recover, but we cannot resist the conclusion that defendant should, upon the showing made by plaintiff, be put to its proof. The evidence of Hoerr and the warehousemen may clear away many doubts which now present themselves, and which under the rules of law we feel bound to resolve in favor of plaintiff on the motion.
2. Appellant presents numerous and plausible, and in some respects cogent, reasons for holding defendant to be estopped by its conduct from escaping liability by pleading Hoerr’s ownership of the property. We avoid a consideration of this point, although much urged by plaintiff, as we do not wish to forestall its determination at the retrial.
On the whole case, it seems to us that if it had gone to a jury on plaintiff’s evidence and a verdict had been rendered for plaintiff, the evidence would have been sufficient to support a judgment upon the verdict, and hence it was error to grant the non-suit.
The judgment should be reversed.
Gray, C., and Haynes, C., concurred.
For the reasons given in the foregoing opinion the judgment is reversed. Temple, J., Henshaw, J., McFarland, J.