Fitzgerald v. Gorham

Appeal from the Twelfth Judicial District.

This was an action of trover, brought by the plaintiffs against the defendant, Sheriff of the County of San Francisco, for taking and carrying away, on or about the 20th of June, ‘1854, the goods in a certain store, No. 102 on Battery street, in the City of San Francisco, valued at $6,000. The material facts in the case were these: The goods ' originally belonged to Samuel J. Josephs. On or before the 22d of May, 1854, they were attached by the Sheriff, as the property of Josephs, in a suit against him, at the instance'of Horton & Co., for $6,000. Immediately after the said attachment, Josephs sold the goods in the store for $8,000, by bill of sale, to the plaintiffs in this action, and delivered them the possession, part of the consideration being the payment and release of the attachment levied upon the goods. The bill of sale was dated, and the delivery of possession [290] under it was made * May 22d, 1854. On the following day, plaintiffs appointed Josephs their agent to sell the goods, and allowed him a salary of $150 per month for his services. The books were thenceforth kept in the name of Fitzgerald & Brown, by Mr. Fogo, the same person who had kept them before for Josephs. The plaintiffs also paid the rent of the store to the landlord, from the date of the sale to them.

At the time of this sale to plaintiffs, Morris Speyer was also a creditor of Josephs, on a debt contracted before that time, but not then due. After his debt became due, he brought suit against Josephs, issued an attachment on the 15th of June, 1854, and under it, on the 20th of the same month, levied upon the goods previously sold and delivered to plaintiffs, and took and carried them away. This action was brought by plaintiffs against the Sheriff, to recover the value of the goods so taken. On the trial, the Court held that there had been no sufficient change of possession, as required by the Statute of Frauds, and rendered judgment for the defendant, from which plaintiffs appealed.