Ford v. Chambers
Before: Sawyer
Synopsis
Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.
The Court below found the following facts :
“1. That on the first day of November, 1859, William Ford was doing business as a merchant at Quincy, and bad been so doing business for more than a, year before that time. That the stock in such business consisted of goods, wares, and merchandise usually kept in a store in the country. That he had several clerks in his employ in his business.
“ 2. That at that time he was indebted to Jerry Ford, the plaintiff in this suit, and 'his brother, about the sum of ten thousand dollars.
“ 3. That on the 28th of October, 1859, Arrington & Co. obtained a judgment against said William Ford for $5,063 09, in this Court, for goods before that date sold to said William Ford.
“ 4. That on the first day of November, 1859, an execution was issued upon the said judgment and immediately forwarded to E. C. Chambers, the defendant in this action, and then Sheriff of Plumas County.
“5. That on the first day of November, 1859, the said-Jerry Ford arrived at Quincy from San Francisco, and said William Ford agreed to sell to the said Jerry Ford his entire stock of goods, and the amount thereof to be credited upon the debt which William Ford then owed Jerry Ford.
“ 6. That Jerry Ford and William Ford’s clerks, then in the 'Store, proceeded to take an inventory of the stock of goods, in the said store, and so continued from day to day until the morning of the 5th of November, 1859, and the amount of such inventory was charged in the books of William Ford to Jerry Ford.
“ 7. That the evidence of the indebtedness from William Ford to Jerry Ford was an entry of such debt in the said books of William Ford, and the amount of the said inventory was entered in the same books as so much paid upon said debt.
“ 8. Within two hours after the inventory was made, and the entry of the amount thereof was made in the books as aforpsaid, the defendant as Sheriff, with the aforesaid execution, entered the said store and levied upon the entire stock therein and proceeded to take an inventory thereof, and did make an inventory of the same and took them into his custody as such Sheriff, and in the month of December following sold the same under said execution.
“ 9. That a portion of the goods levied upon were in a warehouse about one hundred and twenty-five feet from the principal storehouse.
“ 10. That during the time of the taking of the inventory by the said Jerry Ford and clerks the goods remained in the said store the same as before, and a portion of them were sold by Jerry Ford and the clerks during that time and up to the time of the levy of the defendant.
By the Court,
Sawyer, J. The main question in this case is, as to whether there was an immediate delivery of the stock of goods to plaintiff, Jerry Ford, before the levy of defendant, within the meaning of the fifteenth section of the Statute of Frauds, so as to render the sale valid as against creditors. We are satisfied that there [19]was, and that the conclusion of law drawn by the Judge below from the facts found is, in this respect, erroneous. We have carefully examined the evidence, and think it fully sustains the facts found by the Court, and that in some respects the facts might have been properly stated still more strongly in favor of the plaintiff.
It is clear to our minds, from the findings, and also from the evidence, that, from the time of the arrival of Jerry Ford at Quincy, he took the- entire management and control of the goods. William was not about the store, and gave no direction, except when the inventory was footed up and taken to his room up stairs, he directed the amount to be charged to Jerry on his books. The Court find the bargain to have been made on the arrival of Jerry. Jerry from that time went on with the inventory in connection with the clerks, assumed the direction of matters in the store, and sold goods to customers— the memoranda of sales being kept during the taking of the inventory on loose papers. The inventory was leisurely taken, occupying from the first till the morning of the fifth of November, and was fully completed, and the amount charged over to Jerry Ford, on the books of William, some two hours before the levy by the Sheriff. The goods were taken, so far as they went, in satisfaction of a debt of long standing found to be due Jerry Ford for goods sold to William—said sum appearing as a credit in favor of Jerry, on the books of William Ford. A lease of the store was also executed and delivered on the morning of the fifth, before the arrival of the Sheriff, as shown by the uncontradicted testimony of the witnesses, dated as of the second—the day that Jerry took charge. True, there had been no formal discharge and rehiring of the clerks, but they manifestly acted under the orders of Jerry, and William never came into the store, or interfered in any way after the arrival of Jerry, till he was called down at the instance of the Sheriff at the time he came to make the levy. Unquestionably, as between William and Jerry Ford, the title had passed, and had the goods been destroyed by fire at the moment of the levy, the loss would have fallen on the vendee: and we think [20]
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