75 Cal. 349 | Cal. | 1888
—This is an appeal from a judgment of nonsuit, and from an order denying a new trial. The motion to dismiss the appeal from the judgment must be granted. The judgment was entered January 11,1886, and the appeal was taken April 26, 1887, more than one year after the entry of such judgment.
The proof of service of notice of appeal was sufficient, under the rule enunciated in Reed v. Allison, 61 Cal. 461, and "the motion to dismiss is denied as to the appeal from the order denying a new trial.
“Niles, August 23, 1884. “ Received in Niles Warehouse from John Munson the following cases of canned goods on storage, for account and risk of - (not transferable or negotiable), three hundred and sixty (360) cases canned goods.*353 Storage charges one cent per month, or for any fractional part of a month.
“ Mortimer and Wamsley, Proprietors.”
The receipt should have been for 300 cases, but by mistake was made 360. The warehouseman knew Hogan, did not know Munson, and supposed the deposit was in the name of the latter to avoid danger of legal proceedings by the creditors of the former. Hogan had previously informed Munson that he should deposit fruit in this warehouse (indeed, he had already deposited some), “and when he had got enough in there to secure me [Munson], he would give me the warehouse receipt, and that was all the talk we had about it. .... I never asked him for the receipt, and he never gave it to me.” Hogan never gave the receipt to Munson, but borrowed money on it from defendants, to whom, upon the surrender of this receipt, a new 4ne was given by the warehouseman. Defendants afterwards received the amount due them from Jones & Co., to whom they assigned their security, and the fruit was sold by the latter for twelve hundred dollars. Plaintiffs are the executors of the last will of Lowrie, and as such sue for the value of the fruit; and their right to recover was the question involved in the nonsuit.
1. The agency of Munson ceased with the death of his principal. From that time forward he could not bind the estate of the latter by contracts in the name of his former principal, for the reason that a dead man cannot 'have an agent, in the ordinary acceptance of the term.
2. If Munson, assuming to be the agent of Lowrie, received property or benefits accruing by reason of such assumed or supposed agency, and which property belonged to the estate of one for whom he assumed to act, he could be treated as a trustee, and would be liable as such.
3. The goods were deposited by Hogan in the name of Munson as depositor, it is true, but not for him or for
The exceptions founded upon the rulings of the court touching the testimony of the witness Wamsley, who was recalled by plaintiff pending the motion for nonsuit, are not, we think, either important or tenable. It was first sought to be shown by the witness, for whom he delivered the receipt in question. Upon objection, the court held that plaintiff might show all that was said between him and the boy (Hogan’s boy) fully. This was all that was proper. Ho occult theory of the witness on the subject, no mental reservation or intention of his, not expressed, could alter the rights of the parties. The witness was then asked whom he understood to be the depositor of the fruit, and the court permitted the question, and the witness replied: “ Do you mean the owner?” And the court said: “Depositor. You know what that means, don’t you?” And the witness answered: “The man that put in there.” The court thereupon asked the witness if he understood the meaning of the term, and received for response: “Well, I understand the use of the word ‘ depositor ’ to mean the owner of the fruit.” To which the court responded: “You can answer it in that light if you see fit. But that is not necessarily the construction of the word. The man who delivered the fruit there is the depositor, as a matter of law. How, with that view of it, answer the question.” Answer. “Why, Hpgan was the man that delivered the fruit.” The witness certainly gave his own views upon the subject, and later answered as to the fact in the view presented by the court. The question as put was objectionable, so far as it called for the opinion of the witness, rather than for the facts upon which his understanding was based; and, had the court sustained defendants’
Taking the case as a whole, we think the testimony failed in establishing a predicate for recovery, and that the nonsuit was properly granted, and the motion for a new trial was properly denied. The appeal from the judgment is dismissed, because not taken within one year from the entry of such judgment, and the order denying a new trial is affirmed.
McKinstry, J., and Paterson, J., concurred.
Hearing in Bank denied.