| Cal. | Jul 1, 1860
Field, C. J. concurring.
This was an action brought by the plaintiffs for the recovery of certain goods which the defendant, as Sheriff, had taken into his possession, by virtue of process against one Gatzert. The plaintiffs claimed the goods as their property, on the ground that, though they had been sold by themselves and their assignors, yet that the sale was void, and vested
The case was tried by a Referee, who found for the plaintiffs, and reported a judgment, which was entered as that of the Court. A motion was made to set aside the judgment, which was denied; and the case comes before us on appeal from this order.
Several errors are assigned:
1. That the judgment is for more than the value of the goods, as alleged in the complaint. This assignment is not good. The damages alleged are larger than the judgment, and a mistake as to the value of the goods, which is only one predicate of the recovery, does not estop the plaintiff from recovering a sum commensurate with the loss or injury sustained by him, if the amount so recovered be within the ad damnum, of the writ.
2. That the Referee erred in permitting the assignors of the plaintiffs to testify. It seems that the assignors were owners of the goods sued for, and they assigned these goods, then in the Sheriff’s hands, to plaintiffs. This was not the assignment of a chose in action, but the sale of specific goods, and, therefore, the assignors were not within the inhibition of the section of the Practice Act which provides that the assignors of a chose in action not arising out of contract, shall not be competent witnesses for the assignee. (Hall v. Harrison, 2 Com. 295.) ' The theory of the plaintiffs’ case is, that no title passed in consequence of this alleged sale, but that the title remained after the form of such sale as it did before, and the suit is brought upon this title as if the ownership had never been changed. In other words, these goods were sold in specie, though they were in the Sheriff’s hands, and with the same effect as if in the hands of the vendors.
3. Nor is there anything in the objection that the goods are not sufficiently described. The general description given was sufficient.
4. The witnesses were not interested. The mere expectation of deriving an advantage to which they were not legally entitled, does no disqualify.
5. It is next objected, that there was no right of action in the plaintiffs, because, before suit was brought, no offer to return the notes given by Gatzert for these goods was made. But it is well answered, that this offer may be made at the trial, and a fortiori, at any time before the trial of the cause, and this seems to have been done. (See Nellis v. Bradley, 1 Sand. 560.) The party offering to rescind the contract*219 must retore the other to the position occupied before; but this restitution may be made—in cases like this, of a note given for goods—at any time before trial, or at the trial.
6. It is next objected, that the Referee improperly admitted testimony to show that the vendee was insolvent two months after these purchases of goods. The whole evidence is not set out, and we cannot see the precise bearing and force of this proof. It does not follow, because a man is insolvent on one day, that he was insolvent at any subsequent or antecedent period. But in questions of this kind, the proofs should be clearly shown to be irrelevant, and also injurious to the party objecting; and we do not see that this is the case here.
7. The more serious objection to the sustaining of the judgment, is in the fact that sundry articles, amounting to two hundred and eleven dollars, were included in this judgment, when there was no proof that these articles were of the goods fraudulently procured by Gatzert. The agreed statement says :
“ These articles were proved to have been purchased from the persons whose names are written opposite to them, respectively, but the same persons had previously sold and delivered to Gatzert articles of the same kind, and Gatzert had paid for them, and there was no testimony offered or given by the plaintiffs to show that these articles above enumerated and claimed by them, were those sold to Gatzert in May or June, rather than those sold previously, and paid for by Gatzert.”
The plaintiffs were bound to prove their case, and this by a preponderance of testimony in favor of every substantial point in issue. We see nothing in this statement—which appears to embody all the testimony on the subject—that establishes the fact that the goods, for which a recovery is had, were those which were fraudulently sold.
The judgment must, therefore,- be modified so as to exclude these articles and their value; and the Court below will cause the proper entry to be made. The judgment in other respects is affirmed, but at the cost of the respondents.
Ordered accordingly.