40 Cal. 408 | Cal. | 1870
delivered the opinion of the Court:
After the return of this cause to the Court below, the jury again rendered a verdict for the defendant; and the Court, upon the plaintiff’s motion, granted a new trial. It appears from the opinion, that the order for the new trial was granted mainly on the ground that the property attached by the defendant, was more than sufficient to satisfy the demand of Hutchings; that when enough is taken to satisfy that demand, the balance must be returned to the plaintiff— the vendee of the attachment debtor; that “ that balance can only be recovered in this action,” and that “if a general judgment in favor of the defendant is allowed to stand, the plaintiff can never get it ” — the balance.
The transfer of the property from Crane to the plaintiff, was made on the 14th day of April, 1866; it was seized by the defendant, as the Sheriff, on the 23d of the same
We are of the opinion that the Court was also in error, as to the effect of the judgment for the defendant, upon the property which might remain after the satisfaction of Hutchings’ demand. The judgment determines that the lien of the attachment has priority over the title of the plaintiff, acquired by contract with Crane. No one denies the validity of the plaintiff’s title as against Crane; and when the lien of the attachment is satisfied, the property
There is a further answer to the grounds on which the new trial was granted. The Court requested counsel to prepare for the jury blank forms of the verdict; and the plaintiff’s counsel prepared, and the defendant’s counsel assented to, two forms; one of which was: “We, the jury, find for the plaintiff, and that the value of the property was $ — ;” and the other: “We, the jury, find for the defendant.” And it was agreed in open Court that the verdict should be in accordance with one of those forms. The stipulation, and the assent to those forms for the verdict, make it manifest, that the respective parties desired and expected a general verdict for the whole property in controversy; and negatives the idea that either party then claimed that his right to any parcel of the property was of a different character, or rested upon any different basis, from that asserted to all the property. After an adverse verdict, rendered under those circumstances, it is too late for the plaintiff to insist on a verdict in another form, or to assert a right to a portion of the property, upon principles not applicable-alike to all the property.
Many other grounds are taken in the motion for a new trial, but none of them requires any particular notice except that in relation to the assignment to Hutchings, of the indebtedness of H. C. Crane & Co. to McQueen. It is insisted that McQueen, as he advised the transfer of the property by Crane to the plaintiff, is estopped to deny that the transfer was valid and sufficient under the statute of frauds; and that Hutchings is also estopped, because he took the assignment of the indebtedness, with notice that the property had been transferred to the plaintiff, by the advice of McQueen. There are no grounds for saying, that McQueen was estopped by means of the advice alone; but if estopped, it is because his advice was accepted and acted upon. When he advised a transfer of the property to
Order granting a new trial reversed.