Newell v. Desmond

Appeal from an order of the Superior Court of the city and county of San Francisco granting a new trial.

The action was replevin to recover certain goods and chattels alleged to be the property of the plaintiffs as partners doing business under the fictitious' name of H. Keller & Co. The goods were seized by the defendant under an execution against one Cadman, through whom the plaintiffs derived their title. The business was established by Cadman, who subsequently sold an interest to Max H. Fay, one of the plaintiffs, and thereafter the business was carried on 'by them as partners, until Cadman sold or pretended to sell his remaining interest to the plaintiff Sewell. The fictitious name above mentioned was used from the beginning, and it appeared that Cadman continued to act in the conduct and management of the business until the seizure by the sheriff. There was also evidence showing that after the sale to Sewell, Cadman acted merely as the agent of the plaintiffs. The court found in favor of the plaintiffs, and rendered judgment accordingly, but on motion of the defendant a new trial was granted. The motion was heard on a statement of the case, and the only specifications relating to the insufficiency of the evidence were that the court erred in failing to find certain facts shown by the' evidence as to the fraudulent character of the sales by Cadman, and the want of any delivery or change of possession.