Byrnes v. Hatch

Belcher, C. C. This action was commenced to recover the possession or value of seventy-three and a half tons of hay. The defendant, as sheriff of San Mateo County, levied a writ of attachment, issued against one Pullen, upon the hay, and he justified the taking on the ground that it was then the property of Pullen, and subject to seizure and sale in payment of his debts, and that the plaintiff’s claim thereto was false and fraudulent, and was made for the purpose of hindering, delaying, and defrauding the creditors of Pullen. The court below found all the facts, and rendered judgment, in favor of the plaintiff. The defendant moved for a new trial, and his motion having been denied, appealed from the judgment and order.

The material facts of the case are as follows: The hay in question was wheat hay, and was raised and harvested by Pullen in 1884. In March of that year Pullen borrowed of one McDermott four hundred dollars, and gave him his promissory note for that amount, bearing one per cent per month interest, and a mortgage to secure the payment of the note on all the crop of hay and grain then standing and growing on a certain described farm. In September following Pullen borrowed of McDermott $150 more, for which he also gave his promissory note. When all the hay had been harvested, by direction of McDermott Pullen hauled it to a warehouse a few miles distant and stored it there. It was placed in one end of the warehouse by itself. In October, shortly after the work of hauling and storing was completed, Pullen executed and delivered to McDermott a bill of sale of the hay for the agreed price of twelve dollars per ton. This satisfied the two notes for borrowed money, and left $284 due Pullen, which McDermott at once paid him. As the hay was being hauled to the warehouse, and after it was all stored and he "had obtained his bill of sale, McDermott told the warehouseman that it was his hay, and to place it in his name on the books. The warehouseman [244]knew of and recognized his ownership of the hay, and on one occasion asked him why he did not sell it. Ho books were kept at the warehouse, and no written entries were made or receipts issued for property stored there. In December McDermott sold the hay to the plaintiff, and executed and delivered to him a bill of sale of it. On the next morning after the sale, the parties went into the warehouse, and McDermott then pointed out the hay to the plaintiff, and told him he delivered him possession of it. The warehouseman had no notice of this sale until after the action in which the attachment was issued was commenced.