Goodale v. Scannell

8 Cal. 27 | Cal. | 1857

Murray, C. J., delivered the opinion of the Court—Burnett, J., concurring.

This was an action to recover a quantity of sugar, which had been seized on execution, as the property of one Prank. The defendant contended, on the trial, that the property belonged to Frank, the defendant in execution, and not the present plaintiff. The Court, sitting as a jury, found that the sugar was the property of the plaintiff, and that he had never sold the same .to Frank. This is conclusive upon the point, and will not be reviewed by us, as the evidence was conflicting.

The appellants contend that the Court erred in refusing to decide, as a matter of law, “that if the plaintiff gave out to the public that he had sold the sugar to Frank, and gave to him the possession, then, as to Frank’s creditors, it was his property, and subject to be levied upon and seized for his debts.”

This instruction was properly refused, because there was no evidence to warrant it. To estop the plaintiff, it should appear that his declarations were communicated to the creditor, who seized the goods, and that he parted with some right or advantange, on the faith of the information. Hot only is this fact not shown, but the defendant has failed to show that the plaintiff ever made any statement on the subject.

Judgment affirmed.