Caswell v. Baker Co., Inc.

PLUMMER, J.

Plaintiff had judgment in an action for

the value of 192 sacks of beans alleged to have been converted by the defendant Baker & Co., from which judgment the defendant appeals. Both the appellant and the respondent set forth a

résumé

of the testimony in the briefs submitted on this appeal. After setting forth the testimony, appellant makes this statement: “With these facts in mind, it is the contention of the defendant that no credence can be placed upon his (plaintiff’s) testimony as to what he did, or where he did it, and that such testimony should be given no credence in the consideration by the court as to whether he is entitled to relief.” It is almost commonplace for us to state that with the credi-' bility of witnesses courts of appeal have nothing to do. The trial court has the witnesses before it and if the trial court accepts the testimony of a witness and there is nothing inherently improbable in the witnesses’ testimony, or nothing showing that it cannot be true, courts of appeal are bound by the determination of the trial court.

The testimony set forth in the transcript shows that during the year 1922 one McBride was a tenant of the plaintiff Caswell; that during the year 1922 McBride farmed lands belonging to Caswell and raised thereon 537 sacks of cleaned beans; that McBride farmed Caswell’s land upon shares; McBride’s portion of the beans numbered 345 sacks, Caswell’s portion 192 sacks; that after the beans were harvested, McBride employed a truckman to haul the beans and deliver the same at a warehouse belonging to the. defendant; that immediately after the beans had all been hauled and delivered to the warehouse belonging to the defendant, McBride called at the warehouse, had a conversation with Mrs. Kelly, a bookkeeper of the defendant, asked for a piece of paper that he might figure out the number of sacks belonging to himself and the number of sacks belonging to Caswell and at that time stated that Caswell owned a certain portion of the beans just de

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livered; that McBride was informed by Mrs. Kelly that the fairest way to divide the beans would be to wait until they had been cleaned; that upon the receipt of the beans by Baker & Co., tags were issued therefor for the several sacks of beans, the heading of which tags, after giving the date, read as follows: “Received from McBride for account of M. B. & G. Co.” Then follows a detailed statement of the number of bags and gross weight of beans received. These tags were delivered to McBride. McBride testified that he did not examine these tags and that he never gave directions to anyone that the tags should be made out in favor of M. B. & G. Co., which the testimony shows to be the letters used to indicate Modesto Bean and Grain Company; that shortly after the beans had been recleaned McBride, in company with an official of the Modesto Bean and Grain Company, went to the office of the defendant and had a warehouse certificate for 345 sacks of beans issued in favor of the Modesto Bean and Grain Company; McBride testified that he never gave any agent or official of the defendant any directions to issue any warehouse certificate to anyone covering the remaining 192 sacks of beans. The record shows that Baker & Co. did issue warehouse receipts or certificates in favor of the Modesto Bean and Grain Company covering the 192 sacks of McBride beans which McBride and Caswell testified belonged to Caswell as his share of the beans raised upon the Caswell ranch. Some time after certificates had been thus issued covering all the beans delivered at the warehouse of Baker & Co. by McBride the Modesto Bean and Grain Company discovered that it had to its credit 192 sacks of beans deposited by McBride with Baker & Co., that the Modesto Bean and Grain Company had not purchased and thereupon wrote the following letter: “Dec. 28th, 1922. Baker and Company, Modesto, Calif.