Morris v. Bekin's Van and Storage Co.

KERRIGAN, J.

This is an action brought to recover the value of certain personal property alleged to have been lost by reason of the negligence of the defendant as a common carrier. After a trial by the court sitting without a jury a judgment was entered in favor of plaintiffs. This appeal is from the judgment upon the judgment-roll alone.

1. The complaint shows that the appellant received the goods in question April 16, 1906, and agreed to transport them from San Francisco to Oakland. The trial court found that the time agreed upon for the delivery of the goods was April 16,

1907.

The cause was tried March 30, 1907, seventeen days prior to the date upon which it is found that appellant was to deliver the goods. Appellant contends tMt, according to this finding, it was not in default either at the commencement of the action or at the time of the trial, and that consequently the judgment against it is unauthorized. The complaint was filed July 25, 1906; the cause was tried November 26, 1906, and judgment was entered April 9, 1907. There is no claim that the action was prematurely brought, nor is there anything in the record which supports the finding that the property was to be delivered in April, 1907. On the contrary, an allegation of the answer shows that delivery of the property was to be made April 17 or 18, 1906; and the finding immediately following the one in question, referring to the date of April 16, 1907, speaks of it as “the said 16th day of April, 1906.” We think the finding in question was intended to read April 16, 1906. It is apparent that the figures “1907” are a clerical misprision. Again,

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the court found that appellant did not deliver the said personal property to respondents according to its agreement, but that appellant “so negligently conducted and misbehaved in regard to the same in its calling as a carrier” that the said personal property was wholly destroyed by fire April 19, 1906. This finding renders the one in question immaterial. Assuming that the property was to remain in the possession of the appellant until April 16, 1907, nevertheless, immediately upon its loss through the negligence of appellant respondents had a right of action against appellant for damages for its value.