Hickey v. Coschina.

COOPER, C.

This action was brought to recover of defendant Coschina as constable, and the other defendants as sureties on his official bond, a certain stock of cigars, goods, and fixtures in a cigar-store at No. 116 West Santa Clara Street, in

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the city of San José, or in case a delivery cannot be had, the value thereof, with damages for the detention. The case was tried with a jury, and a verdict returned for plaintiff, fixing the value of the property at $315, and the damages to plaintiff by reason of the taking at $140. Judgment was accordingly entered. Defendants made a motion for a new trial, which was denied, and this appeal is from the order denying said motion. No objection appears to have been made to the instructions given by the court to the jury.

The principal question discussed in the case is as to whether the evidence supports the verdict. There is no question here as to the good faith of plaintiff in purchasing the goods, nor as to the payment of the purchase price. The only question is as to whether the sale was accompanied by an immediate delivery and followed by an actual and continued change of possession. The evidence upon this question was conflicting, but the jurors were the judges of the question of fact, and by their verdict they have determined that there was such immediate delivery and actual and continued change of possession. The court below had the power to, and no doubt did, carefully weigh and consider the evidence for the purpose of determining whether or not the verdict was the correct conclusion from all the testimony in the case. It had the power to set aside the verdict, even though the evidence was conflicting, if convinced that it was unjust, or not in accord with the weight of the evidence. Here we have no such power. The presumptions are all in favor of the correctness of the verdict. To this presumption is added the sanction of the court below in denying the motion for a new trial. We can therefore only look to the evidence, and if the verdict finds substantial support therein, we cannot disturb it.

The plaintiff testified: “I took possession of the goods that evening; some of them were already in my rooms and the balance was put in my rooms. ... I was the owner and conducting a cigar-store at No. 116 West Santa Clara Street, in the city of San José, California, on the 6th of April, 1897. I had been engaged in that business about a month. I commenced fitting up my store on the first day of March, 1897, and opened it for business about the tenth day of March, 1897. I continued my business at the same place until the defendant M. Goschina took possession of it on the sixth day of April, 1897.”