Barnhart v. Fulkerth (1887) · DecisionDepot

Barnhart v. Fulkerth

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Sep 30, 1887 No. No. 11849Published

Before: McFarland, Sharpstein, Thornton

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Holding. A plaintiff in a claim and delivery action must recover based on the title held at the time the action was commenced, and cannot rely on a title or interest acquired or asserted as an afterthought after the suit was initiated.

Issues

Whether a plaintiff can assert a third party's title to property to defeat a defense if that title was not part of the original transaction and was invoked only after the action commenced.
Whether a plaintiff waives objections to the conditions of a tender by admitting the sufficiency of the tender amount.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“Barnhart must recover on his title as it was when the action was commenced.”

“Having made this admission, Barnhart should not be permitted afterwards to allege that the tender was not good”

Synopsis

Appeal from a judgment of the Superior Court of San Joaquin County, and from an order refusing a new trial.

After the trial of the action, the defendants presented to the court a document embodying what they claimed should be the appropriate findings in the case, and requested the court to adopt them as such. The court refused so to do, and adopted other findings. The further facts are stated in the opinion of the court.

Thornton, J. — This action was brought to recover possession of 4,255 bags of wheat, or their value in case a delivery cannot be had, and for $2,000 damages, etc.

The material allegations of the complaint were denied by the answer, and defendant Fulkerth justified under a levy on the wheat sued for, made by him as sheriff of the county of Stanislaus, of a writ of attachment issued in the action brought in the District Court for the county just named, by H. 0. Matthews et al. against J. T. Davis, and further, under a levy on the same property of a writ of execution issued upon a judgment recovered in the above-entitled action.

At the trial, it appears that on or about the seventh day of November, 1878, the plaintiff lent Davis the sum of two thousand five hundred dollars, and received the wheat in question in pledge as security for its repayment to him. These facts are established by uncontroverted evidence. At the time of this loan the wheat was stored in a warehouse at Turlock. It had been stored at Turlock before plaintiff made the loan to Davis, having been placed there by Davis in the September preceding. For this wheat a receipt was given by the warehouseman, defendant Perley, of which the following is a copy:—

“ Turlock, Cal., Sept. 16, 1878.

“ Received in good order, and well conditioned, from E. C. Vancel, five thousand and fifty-five (5,055) bags wheat weighing six hundred and fifty-four thousand three hundred and eighty-nine pounds (654,389 lbs.), which I hereby agree to deliver in like order and condition (the danger from fire excepted) upon return of this receipt and payment of storage at the rate of fifty cents per ton for the first month, commencing August 26, 1878, and twenty-five cents per ton per month thereafter. Total storage not to exceed one dollar ($1) per ton for the season ending June 1, 1879.

“ Stored in the grain warehouse at Turlock known as Charles Dallas’s warehouse. George Perley.”

[528]This receipt was delivered to the plaintiff by Davis on the 7th of November, 1878, with the following indorsements on it: —

“ To dispose of for me to the best advantage, I assign the within to John T. Davis. E. 0. Vancel.”

“ Nov. 5, 1878. Received on the within receipt eight hundred bags wheat, estimated weight one hundred and four thousand pounds. J. T. Davis.”

Barnhart v. Fulkerth

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