Shedoudy v. Spreckels Bros. Commercial Co.

TAGGART, J.

Appeal from judgment in favor of plaintiff and from an order denying defendant’s motion for a new trial.

On the tenth day of July, 1905, plaintiff shipped a case of crockery and oriental goods from San Bernardino to Los Angeles, addressed to “Elias A. Shedoudy, Los Angeles, Cal.,” via the Santa Fe Railway. This case of goods was delivered to the defendant, as a warehouse-keeper at Los Angeles, by the railway company, on August 7, 1905, to be stored until plaintiff should claim it. On November 7, 1905, plaintiff called at defendant’s warehouse in said city, and in a conversation with defendant’s representative was told that defendant had the case of goods, and the charges on them were $2.50 to November 7th, and would be twenty-five cents a month thereafter. Plaintiff said he would like to leave the goods in storage, and was told that defendant would “keep them as long as you want.” He then stated that he was going on a long trip and that when he located he would send defendant a letter to send the goods C. O. D. The representative replied: “We might not send them C. O. D.; you better send the money,” and upon plaintiff suggesting that he might forget the amount, defendant’s agent wrote upon a card, “Charges to Nov. 7, 2.50, 25c. per. mo. thereafter,” and handed it to plaintiff. To a suggestion made by the representative of defendant that the goods might not be worth the money (evidently referring to the charges that might accrue from storage, shipping, etc., in ease the goods

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were sent C. O. D.), plaintiff replied, “there is about fifteen hundred dollars’ worth of goods in that ease.”

Plaintiff went away “to the old country,” and on reaching New York on his return wrote to defendant, under date of April 24, 1907, asking for a bill of the charges on the goods, and stating that as soon as located he would write where to-send them. In response to this he received a postal card saying, “Your shipment was sold for unpaid charges more than a year ago.” The evidence discloses that the case of goods, was sold at public auction, without being opened, for $3, on April 24, 1906, the unpaid charges at that time being $3.25 ;• and that the sale was made in accordance with the provisions, of sections 3152 and 3153 of the Political Code. It is practically conceded that if defendant was authorized to sell under these sections it has a good defense to the plaintiff’s; cause of action; otherwise not.