Blumenthal v. Greenberg

COOPER, C.

This action was brought to recover of defendants a balance of eight hundred and ten dollars alleged to be due for goods, wares, and merchandise sold and delivered by plaintiff to defendants at their instance and request for the agreed price of eight hundred and fifty dollars. The case was tried before the court, findings filed, and judgment entered in favor of plaintiff for the sum of four hundred and five dollars and costs. This appeal is by defendant Greenberg from the judgment and from an order denying his motion for a new trial. -It is claimed that certain of the findings are not supported by the evidence, and that the court erred in overruling two objections made by appellant to certain questions asked of the plaintiff while on the stand as a witness.

The court found that the plaintiff sold and delivered to the defendants goods, wares, and merchandise, and this finding is attacked, and in his specifications counsel says: “There is no evidence whatsoever that plaintiff at any time or place delivered any goods or any merchandise or any wares to defendant, Charles Greenberg.” The evidence shows that the subject of sale was a saloon and the liquors therein, at 313 O’Farrell street, in the city of San Francisco. That a contract in writing was made by plaintiff with both defendants for the sale of the property. Plaintiff testified: “Under that contract I delivered the place to Mr. Wehr, in the absence of Mr. Greenberg, on February 5th, which he directed me to do. ... . Wehr immediately took possession of the place.” The plaintiff further testified that appellant said, “If I should not be here, deliver the place over to Wehr.”

[386]

'The witness Harris testified: “He [speaking of plaintiff] told Mr. Wehr that he gave him possession of the place in the name of both Mr. Wehr and Mr. Greenberg, and Mr. Wehr then went behind the counter and invited us to drink.” The defendant Wehr testified that after the contract was made with plaintiff on January 31st, that appellant Greenberg told him that he had to go to Vacaville to settle up his affairs, and that he would be back by February 3d, and that Greenberg said: “If I ain’t here you go right ahead.”

The defendant Wehr, after further testifying that appellant had not returned on the 5th, said: “I took possession and reengaged the men that were there on account they were acquainted with the people.”