Fairmont Creamery Co. v. Los Angeles Ice & Cold Storage Co.

LANGDON, P. J.

This is an appeal by the plaintiff from a judgment against it rendered in an action for conver

[104]

sion of a carload of

eggs.

When the action was first tried judgment was rendered for the plaintiff, from which judgment the defendant appealed. Upon the appeal the judgment was reversed. The decision upon the first appeal is reported in volume 33 Cal. App. 414, [165 Pac. 553], The case was then retried, resulting in a judgment for the defendant, from which judgment this appeal is prosecuted.

The important facts, as stated on the first appeal, also appear from the present record and are as follows:

On June 17, 1913, one Fred F. Lambourn was engaged in business at Los Angeles as a broker selling merchandise on behalf of consignees and also as a dealer in merchandise on his own account. He had been in business for several years. In August, 1913, he was adjudged a bankrupt. The plaintiff was engaged in the produce business at Omaha, Nebraska, and had been doing business with Lambourn as a broker since April, 1911. On June 5, 1913, Lambourn telegraphed plaintiff that he had sold a car of eggs. The telegram was as follows: “Sold car candled current receipts fifty-three and over small dealers eighteen cents track. Wire car number and when can ship.” On June 7, 1913, the plaintiff shipped the carload of eggs thus ordered and made the consignment directly to and in the name of Lambourn. The car arrived at Los Angeles on June 17, 1913. When the merchandise was shipped from Omaha a bill of lading therefor, showing the shipment from plaintiff to Lambourn, was received from the railroad company, and was mailed by the plaintiff to Lambourn. According to the testimony of plaintiff’s sales manager this was done that Lambourn “might obtain possession of the eggs for the purpose of making delivery to the various parties to whom he had sold as our broker.” At the same time the plaintiff forwarded through the Omaha National Bank to that bank’s correspondent in Los Angeles a draft on Lambourn for $2,160, the purchase price of the eggs. The draft was not paid. On June 17, 1913, Lambourn informed the superintendent of the defendant that he had a car of eggs and wanted a loan upon it. The eggs were taken into the possession of the defendant and placed in its warehouse, and defendant issued to Lambourn a warehouse receipt therefor. Thereupon, on the same day, the defendant loaned to Lambourn two thousand three hundred dollars, taking his note