Wong Foo v. Southern Pacific Co.

KERRIGAN, J.

This is an action to recover damages for the alleged conversion of 810 sacks of potatoes -by defendant company in its capacity as warehouseman.

Plaintiff claimed to he the owner and entitled to the possession of the property, which had been deposited for storage in the warehouse of the defendant company at Stockton. It is alleged in the complaint that while the potatoes were in the possession of defendant, plaintiff demanded the same and offered -to pay the charges thereon, but that; defendant not

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only failed to deliver them, but converted and disposed of the same to its own use.

The answer of the defendant specifically denied the allegations of the complaint, and for a separate answer alleged that on the twenty-fourth day of November, 1915, one James Donlon entered into an agreement with a produce firm called the Rourke Company, whereby said Donlon agreed to sell said company 810 sacks of potatoes at $1.30 a sack, and that under the terms of said agreement said potatoes were to be delivered f. o. b. at the river bank and shipped to Stockton, their arrival in good condition at said place to be considered as the time and place of the consummation of said sale. The answer further alleged that on December 2, 1915, Donlon shipped the potatoes to Rourke Company, and that defendant received them and stored the same in its warehouse, but that Rourke Company had not prior to January 12, 1916, or at any time thereafter paid Donlon any part of the purchase price thereof, but that on said last-named date Rourke Company had declared its inability to pay its debts, whereupon said Donlon gave notice to defendant company not to deliver the potatoes to said company, and demanded possession of them, in pursuance to which demand defendant delivered the potatoes to Donlon.

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From the evidence it appears that the sale of the potatoes was negotiated by an agent of Rourke Company with one Hop Sing, who had charge of Donlon’s land, and who was farming the same under an agreement with Donlon. It also appears that Hop Sing had no title to the potatoes, but that he was vested with authority to make a sale thereof. The material part of the agreement entered into by these parties on behalf of their principals is as follows: