Laurence v. Pacific Oil & Lead Works

THE COURT.

The plaintiff brought this action to recover from the defendant damages for failure and refusal to deliver a certain quantity of oil in violation of an oral agreement. The answer, among other defenses, set up that the action was barred by subdivision 3 of section 338 of the Code of Civil Procedure, requiring an action for the taking, detaining, or injuring of goods to be brought within three years,- and also subdivision 1 of section 339 of said code, limiting to two years the time in which suit may be brought upon an obligation or liability not founded upon an instrument in writing. The complaint was filed on June 4, 1915.

The court found, evidently in response to the issue of the bar of the statute, that prior to the twenty-fourth day of April, 1912, the defendant had wholly failed and neglected to deliver said oil upon the order of plaintiff; and also that on the twenty-third day of April, 1912, the defendant refused to deliver said oil to plaintiff’s order, and notified plaintiff in writing of such refusal, and these findings are supported by the evidence. The court further found that the plaintiff was not

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injured by defendant’s refusal to make the demanded delivery, and gave judgment in defendant’s favor, from which plaintiff appeals.

The appellant claims that there is no evidence to support the finding of defendant’s refusal in writing to deliver the oil; but the evidence is found in the sworn answer of the defendant in a previous action between the same parties concerning the same oil, in which the ownership by plaintiff of the oil or any interest therein was specifically denied, and it was also alleged that the merchandise belonged to another party, to whom it had been actually delivered by the defendant. This evidence was introduced by the plaintiff himself. His cause of action against the defendant immediately arose upon this categorical denial of any right or interest of the plaintiff in the merchandise.

The point is made by appellant that the court failed to find in terms upon the plea of the statute of limitations, which was a material issue in the ease, and that it is not sufficient to find facts fropi which the bar of the statute may be inferred, citing the case of