35 Cal. 188 | Cal. | 1868
The first question to be disposed of on this appeal is one of practice. The cause was tried before the Court without a jury; and the Court having pronounced an oral decision in favor of the plaintiffs, requested the plaintiffs’ attorney to draw up in form the proper findings. The proposed findings were accordingly drawn up and served upon the defendants’ attorney, who excepted thereto; and thereupon the attorneys appeared before the Judge to have the same settled. On examining the exceptions the plaintiffs’ attorney concluded to modify the findings first drawn up, and afterwards served upon the defendants’ attorney the new series of findings, and submitted them to the Judge; but on examining the exceptions to them the Judge refused to sign the second series ; whereupon the plaintiffs’ attorney drew up a third series, which he served upon the defendants’ attorney, who thereupon proposed amendments, or rather a substitute therefor, which was submitted to the plaintiffs’ attorney, who returned it with a note to the effect, that he preferred his own draft of the findings, and at the close of the note inquired: “When shall we settle them ? ” Nothing further transpired in respect to appointing a time for settling the findings; and they were afterwards signed by the Judge, without notice to the defendants’ attorney, who thereupon moved to vacate and set them aside as irregular, on the ground that he was entitled to notice of the time and place for settling and signing the findings. The Court denied the motion, and this is one of the errors complained of.
It is not denied by the counsel that the Judge may draw up, sign, and file his findings, without notice to the attorneys. But it is claimed that a different rule prevails, when the findings are not drafted by the Judge, but by the attorney of the successful party. We perceive no valid reason for this distinction. It is the duty of the Judge to see that the findings are proper and in conformity with his view of the facts and the law before signing them. Whether the findings be
The complaint contains two counts. The first alleges, in ■substance, that the defendants were indebted to the plaintiffs in the sum of ten thousand dollars, for the use and occupation of a wharf of the plaintiffs, in the City of San Francisco, by the defendants, at their instance and request, and by the sufferance and permission of the plaintiffs; and that in consideration thereof the defendants promised to pay said sum to the plaintiffs, on request.
The second count avers, substantially, that at the request of the defendants the plaintiffs had suffered and permitted the defendants, by themselves, their servants, and agents, “ to use, occupy, hold, and enjoy a certain berth at a certain wharf or dock of the plaintiffs * * * and to place at the said dock or wharf a certain vessel or ship, called the ‘Aquila,’ and there to remain from the 15th day of January to the 1st day of June, 1864; and also to use, occupy, and enjoy the said wharf for the landing and storing of certain large quantities of goods,” etc., and had also suffered and
There are certain controlling facts in this action which are established by the findings and proofs, and not controverted by either party, to wit: that the plaintiffs were the owners of the wharf in question, and the defendants were the owners of the cargo of the “ Aquila,” then lying in the Bay of San Francisco; that a contract was entered into between the defendant Ryan and one Jeffries, the agent of the plaintiffs in that behalf, to the effect that the “ Aquila” should come "in and occupy a berth at the wharf for a time not limited or defined by the contract. That at the time when the contract was made a gale of.wind was prevailing in said bay, and said Ryan insisted on bringing the vessel immediately into the berth engaged for her alongside the wharf; but the agent of the plaintiffs remonstrated against her being brought in until after the gale should have abated, alleging that it would be unsafe both for the vessel and the wharf to have her brought in during the prevalence of the gale; but in defiance of the objections of the plaintiffs, by the direction of Ryan, the vessel was brought into the berth alongside the wharf and fastened to it before the gale abated; that within twelve hours thereafter she foundered, by reason of the gale, and went down alongside the wharf, breaking her fastenings; but the fastenings were immediately renewed by the defendants, and in that condition, sunken and fastened to the wharf, she remained until the cargo was taken out in lighters; that whilst thus lying sunken and foundered, she obstructed the access of other vessels to the wharf; that for some days next
Other facts were proved and found which we do not deem it necessary to state, in the view which we take of the case.
The Court entered judgment for the plaintiffs for six thousand one hundred and thirty-three dollars and thirteen cents, being at the rate of sixty-eight dollars per day for the time during which the wharf was exclusively occupied by the defendants, and at the rate of thirty-four dollars per day for the remaining period until the vessel was finally removed so that she no longer obstructed access to the wharf.
The action is founded on the contract between the plaintiffs' and the defendant Ryan, who it is alleged acted for himself and the other defendants. It has none of the features of an action ex delicto. In both counts of the complaint the contract is alleged to be the basis of the action. In the first count it is alleged that the indebtedness arose from the use and occupation of the wharf by the defendants, at their request, and by the sufference and permission of the plaintiffs. In the second count the allegation is, that at the request of the defendants the plaintiffs permitted them to use and occupy the berth and wharf on the promise of the defendants to pay whatever sum such use and occupation were reasonably worth.
The first point to be ascertained is, whether or not any contract, express or implied, of the character alleged in the complaint, was entered into, and if so, whether the damages suffered by the plaintiff resulted from a breach of the contract by the defendants. It is of the essence of every express contract, that the contracting parties shall have assented to all its provisions. In this case, time was a material element in the contract. Ryan insisted upon bringing the ship into her berth immediately, but the plaintiff" did not assent to this. On the contrary, their agent remonstrated against it, alleging that it would endanger both the ship and wharf.
But it does not follow that because there was no express contract the law may not imply one, under certain circumstances. If a trespasser seize the goods of another and convert them to his own use, the owner may waive the trespass and sue ex contractu for the value of the goods, and the law will imply a promise to pay. But the action in this case was for use and occupation; and it is well settled that an action of that character will not lie, except where the relation of landlord and tenant exists; or, at all events, where the occupation is permissive, and not tortious. (1 Chitty’s Pleadings, 107; Lloyd v. Hough, 1 How., U. S., 153; Curtis v. Treat, 8 Shepley, 525; Ryan v. Marsh, 2 Nott & McCord, 156; Smith v. Stewart, 6 Johns. 46; Henwood v. Cheeseman, 3 S. & R. 500, Bancroft v. Wardwell, 13 Johns. 491; Featherstonhaugh v. Bradshaw, 1 Wend. 134.)
In Lloyd v. Hough, the Court says: “ The action will not lie where the possession has been acquired and maintained under a different or adverse title, or where it was tortious, and makes the holder a trespasser.” And this is doubtless a correct exposition of the law.
The defendants’ motion for a nonsuit should therefore have been granted.
Judgment reversed and new trial granted.
Mr. Justice Rhodes expressed no opinion.