Goldstein v. Hort

By the Court, Currey, C. J.: Replevin for two thousand half sacks of flour of the alleged value of five thousand five hundred dollars. The defendant Hort answered, denying each and every allegation of the complaint. Cohen intervened, claiming the property and asking for a judgment that plaintiff take nothing by his action and for judgment against Hort, who had possession of the flour, for the recovery of the possession thereof, or for its value in [374]the sum of four thousand dollars in case a delivery of it could not be had. The plaintiff and the defendant Hort respectively controverted the matters contained in the complaint of the intervenor. The issues joined were tried before a jury, and upon the trial the plaintiff was, on motion of the defendants and intervenor, nonsuited and judgment thereupon entered against him. The plaintiff’s appeal is from the judgment.

From the bill of exceptions contained in the transcript of the record it appears that on the 17th of January, 1863, one Henry Garthwaite proposed to borrow of the plaintiff eight thousand dollars, to be paid, with interest, in ninety days thereafter, and in consideration thereof to secure the sum so to be borrowed by a pledge of four thousand half sacks of flour on storage with A. S. Eldridge, a warehouseman at the Empire Warehouse in San Francisco; and to consummate the matter Garthwaite made and delivered to the plaintiff his promissory note for eight thousand dollars, payable in ninety days after that date, and at the same time executed to him an assignment in writing of the four thousand half sacks of flour as collateral security for the payment of the note and interest, and also pointed out to the plaintiff the flour as his flour. This was done in the presence of oneLoring, who was in charge of the warehouse at the time as the clerk of Eldridge, and who , was authorized to act for his principal in receiving goods on storage and giving warehouse receipts for the same in the absence of Eldridge. By the request of Garthwaite a warehouse receipt was then made 'out by Loring, the clerk, and signed and delivered to the plaintiff. The receipt described the four thousand half sacks of flour, and. acknowledged the receipt of the same on storage from the plaintiff. It was signed “Á. S. Eldridge, per Loring.” Upon receiving the note, the instrument of transfer and the storehouse receipt, the plaintiff counted the sacks of flour and placed 'the initial letters of his name .on some of them, on the front side of the pile of sacks, and then delivered to Garthwaite the eight thousand dollars. At the time of this transaction the flour belonged to Marten-stein & Co., and was'on storage at the'Warehouse on their