Kelly v. Murphy
Before: Searls
Synopsis
Bill of Particulars—Failure to Furnish — Exception to Evidence — Demand — Appeal. —An exception by the defendant to the introduction of evidence in support of the claim of the plaintiff, because of his failure to furnish a bill of particulars, will not be considered on appeal if the record fails to show that any demand for a bill of particulars was made by the defendant.
Conversion—Insufficient Description of Property—Demurrer.—In an action to recover damages for the conversion of certain personal property, an objection to the complaint that it does not describe the property alleged to have been converted with sufficient particularity must be taken by special demurrer.
Partnership—Notice of Dissolution—Evidence. —A notice published in a newspaper of the dissolution of a firm, and of the continuance of the business by one of the partners, is admissible in evidence to show who - conducted the business after the dissolution, and in whose possession the firm property remained.
Id. — Ownership of Business—Evidence.—As tending to show that a particular business was conducted by a deceased person ostensibly for himself and in his name, and not for or in the name of another, evidence that the goods used in the business were sold to him in his own name and charged to him individually is admissible.
Fraudulent Sale — Retention of Possession by Vendor—Effect of. — A sale of personal property not accompanied by an immediate delivery and followed by a continued change of possession is void under section 3440 of the Civil Code, not only as against creditors of the vendor, hut also as against the executrix of his last will
Pleading — Allegation of Coverture — Evidence.—The action was brought to recover damages for the conversion of certain personal property alleged to belong to the estate of one William Wearman. The defendant was sued by the name of Margaret Murphy. In her answer, she alleged “that her true name is Margaret Murphy Wearman”; that she owned and possessed the property in controversy in her own separate right, “and controlled the same as her separate property independent of her husband, the said William Wearman.” Held, that these allegations did not aver a coverture of the defendant and Wearman, and that evidence thereof was inadmissible.
Marriage — Living Together as Husband and Wife. — An offer to prove that a man and woman lived together as husband and wife is not an offer to prove their marriage.
Searls, C. This is an action by the plaintiff, as executrix of the last will of William Wearman, to recover from the defendant damages for the conversion of certain personal property belonging to the estate of deceased.
[562]Plaintiff had judgment for two thousand dollars and costs, from which judgment defendant appeals.
At the outset of the trial, defendant objected to the introduction of any evidence in support of the claim of plaintiff, upon the ground that he had served upon plaintiff’s attorney a notice calling for a bill of particulars, which had not been furnished as required by section 454 of the Code of Civil Procedure. The objection was overruled by the court, and an exception taken.
1. There is nothing in the bill of exceptions to show' that any demand for a bill of particulars was ever made.
If defendant desired to avail himself of the benefit of his exception, it was incumbent on him to so embody the facts upon which' the ruling was based in his bill of exceptions that this court could with all the facts before it pass upon the question.
The complaint was defective in that it did riot describe with sufficient particularity the goods alleged to have been converted by defendant, and in the face of a special demurrer for that cause, could have been held bad; but it stated a cause of action, and no objection having been made on the ground indicated, it was sufficient.
The notice of dissolution of the firm of Wearman & Serrett, and that Wearman would thereafter conduct the business, etc., was properly admitted in evidence. As published in the newspaper, this notice was such a public declaration as may reasonably be supposed to have come to defendant, and was a circumstance proper to be considered in determining who was conducting the saloon business, and in whose possession the disputed property remained after the dissolution.
Like considerations apply to the admission of the evidence of Marcuse and others, tending to show that they sold goods to Wearman in his own name, and to introduce their bills for such goods to show they were charged to said Wearman individually, and not to defendant.
As evidence that the business was conducted by Wear-[563]
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