Hayes v. Campbell

Myrick, J. This case aaus in this court on a former appeal Arhen a iicav trial ayus ordered. The decision is reported in 55 Cal. p. 421. A new trial Ayas had, and judgment Avent for plaintiff. From that judgment, and from the order denying motion for neAv trial, defendant has appealed. The facts as boav presented are in some respects different from those presented on the former appeal.

The transcript sIioaa’s that the findings as to the following facts were agreed to by the parties:—

Plaintiff Avas the owner of the AAdieat in controversy. He shipped the Avheat October 18, 1874, by rail from Woodland, Yolo County, consigned generally to E. E. Morgans’ Sons, care of Starr Bros. & Campbell, at Vallejo, to be by Morgans’ Sons shipped to Europe, and there sold by Morgans’ Sons for the account of plaintiff. The charges and cost of transportation to Europe Avere to be at the rate of £3, 17s, 6d per ton, to be paid by plaintiff. There Avere no marks on the wheat to indicate either the OAvnership or destination. E. E. Morgans’ Sons were general shipping and commission merchants doing business at the city and county of San Francisco. In 1872-73 they had [146]been largely engaged in purchasing and selling wheat in California, and forwarding the same to Europe for sale. In 1873 and 1874 they were largely engaged in chartering vessels to carry wheat from ports in California to Europe to be sold by them, but were not buying, selling, or shipping their own wheat. In March, 1874, Morgans’ Sons made and entered into a charter party with the owner of the British ship Charles Murdoch, by which they chartered the carrying capacity of the vessel at the rate of £4, 7s, 6d per ton. The vessel was to employ stevedores, and the cargo was to be stowed under the captain’s supervision and direction. The defendant Campbell was master and part owner of the ship. Pursuant to the charter party the ship proceeded to Vallejo to receive cargo, and at that place, October 18, 1874, the wheat of plaintiff was placed on board the vessel by E. E. Morgans’ Sons in their own name, and received by the master under the charter party. On the day following, October 19th, Morgans’ Sons became insolvent, and broke the terms of the charter party by refusing to proceed with the loading of the ship; and the ship was not loaded by them other than by placing on board the wheat of plaintiff and others, amounting in all to about two hundred and fifty tons, being less than half a cargo. Prior to the commencement of this action plaintiff demanded from defendant Campbell the possession of his wheat, which was refused, Campbell claiming a lien under his agreement with Morgans’ Sons. The defendant incurred no expense in relation to this wheat, and the charter party had no relation to it. The taking on board and discharging was done by stevedores paid by plaintiff, and Morgans’ Sons never pretended or represented to defendant or any one that this wheat belonged to them.