Bishop v. Fulkerth

Foote, C. — Action of claim and delivery. The defendant appeals from that part of the judgment awarding ten bags of wool to the plaintiff; the latter appeals from that part which adjudges twenty bags of wool to the defendant.

The case comes here on the judgment roll alone, there being no motion for a new trial.

The defendant contends that upon the findings he should have had judgment for the thirty bags of wool; the plaintiff that judgment for him should have been had in like manner for the same amount.

This state of facts appears by the record: The Bank of Sonoma, on the twenty-first day of April, 1882, instituted an action against one Linville upon two promissory [608]notes; upon the next day, an attachment was issued ancilliary to that action, and a seizure was made by the sheriff of Stanislaus County, the defendant in this .case, of thirty bags of wool, then in a warehouse, where it had been left on storage by Linville.

One warehouse receipt issued was as follows:—

“The Fabmebs’ Wabehouse Company oe Oakdale, Stanislaus County, Cal.

“No. 5. Oakdale, Cal., April 22, 1882.

“ Received on storage from J. A. Linville, for account of self, in good order, in the Farmers’ Warehouse Company’s warehouse, at Oakdale, Stanislaus County, Cal., ten bags of wool, weighing 2,961 pounds, pile No.pounds, marked {0,’ which we agree to deliver in like order (dangers from fire or sweating excepted) on return of this receipt properly indorsed, and payment of storage as follows: storage, fifteen cents per bale first month; after that, five cents per month additional.

“ Number of bags, ten.

“Number of pounds, 2961.

“A. S. Emeey, Superintendent.”

The other receipt was in the same words and figures, except that it was numbered “4,” and called for “20 bags of wool,” “weighing 5,326 pounds, marked J. A. L.”

At the time of the issuance of these receipts, the wool was accredited to Linville’s account on said company’s books, and no further entry thereof was made before' the attachment herein was levied, and until after the warehouse receipts were surrendered by the plaintiff in this action.