Pelberg v. Gorham

Crocker, J. delivered the opinion of the Court—Norton, J. concurring.

This is an action to recover damages for an alleged seizure of goods claimed by Pelberg and Glazier, by the defendant, as Sheriff of the County of San Francisco. The defendant set up as a defense, that since the commencement of the suit, one of the plaintiffs, Glazier, had released the cause of action. This release, the plaintiff Pelberg contends, was made for the purpose of defrauding him. The case has been previously before this Court, and will be found reported in 10 Cal. 120.

On the trial, after the return of the remittitur, the defendant asked the Court to give the following instruction to the jury: “ That the complaint in this action alleges that the plaintiffs were the joint owners of the goods in controversy, and that neither of the plaintiffs can deny said joint ownership, as far as this action is concerned.” The Court refused to give it, and this is assigned as [351]error. The complaint alleges that the defendant took and carried away “ certain goods, chattels, and effects, of and belonging to the said plaintiffs.” Here is no direct averment of “joint ownership,” as stated in the instruction. This averment would be sustained by proof that the plaintiffs owned the property as partners, part owners, or as tenants in common, and that their respective interests therein were very unequal. The evidence shows that the plaintiffs were tenants in common of the property, having very unequal interests therein; and therefore the release of Glazier could not affect the interests of Pelberg therein. The refusal of the Court to give this instruction was not erroneous, in view of the facts of the case.

The next error assigned is the refusal of the Court to give the following instruction asked for by the defendant: “ Even if the jury should believe that the plaintiff Glazier, when he made the release, intended to defraud the plaintiff Pelberg, the release is nevertheless valid and sufficient to defeat this suit, provided the defendant, Gorham, was not a party to the fraud; in that event, the remedy of Pelberg would be a suit against Glazier.” If this release was obtained by fraud, it is void, and could not be used for any purpose. But even if such was not the case, the defendant, Gorham, is not the real party interested in defending this action, as he acted in levying upon the goods for and on behalf of the attaching creditors, one of whom it appears procured the release from Glazier. The instruction, therefore, should have stated that those acting for and on behalf of Gorham, must be free of the fraud, as well as Gorham, to make it good, on the ground claimed by the appellant. Gorham could not claim any benefit from a paper procured by the fraud of another acting on his behalf. That a release, obtained by fraud under these circumstances, cannot operate as a bar to the action, is well settled. (Eastman v. Wright, 6 Pick. 323 ; Loring v. Brackett, 3 Id. 403.)