Roberts v. Evans

By the Court,

Belcher, J.: This is an action to recover the value of certain cast-iron shoes and dies, alleged in the complaint to have been sold and delivered by the plaintiff to the defendant. The answer denies that the defendant purchased or received the shoes and dies from the plaintiff'. The plaintiff had judgment, and the appeal is from the judgment and from an order overruling the defendant’s motion for"new trial.

[382]The testimony shows that the shoes ancl dies were the property of the plaintiff, and that they were at a quartz mine owned by him in Kern County; that in December, 1869, one Ellsworth went with a teamster, who was at work for defendant, to the plaintiff’s mill, and having tried and failed to obtain permission from one of the parties in charge of the mill.to take the shoes and dies, took them without such permission, and carried them to the quartz mill of the defendant, where they were received and used by the defendant; that the defendant furnished the wagon to haul them to his mill, and knew where they were obtained.

When the plaintiff rested the defendant moved for a non-suit, on the ground that the plaintiff had failed to show any sale or delivery of the shoes and dies by the plaintiff to the defendant, or by any one acting under his authority, and also on the ground that he had failed to show any authority from the defendant to contract with the plaintiff", or any one else for them.

We think the Court did not err in overruling the motion. It is well settled that when the goods of one are wrongfully taken and used by another, he may waive the. tort, and sue in assumpsit for their value, as for goods sold and delivered. (Fratt v. Clark, 12 Cal. 89; 2 Greenleaf on Ev., Sec. 108.)

The defendant claimed, and introduced witnesses to prove, that he bought the shoes and dies from Ellsworth, and paid him for them; that about a year before they were taken the plaintiff had offered to let Ellsworth have them for their cost and freight, but that he did not want them at that time, and did not then accept the offer; that knowing the plaintiff wanted to sell them, Ellsworth thought it safe to go and take them without any new permission; and that some seven or eight months after they were taken plaintiff wrote to Ellsworth to remit to him the money in payment for them.

If all this were so, we do riot see how it would constitute