Hoyt v. Selby Smelting & Lead Co.

Fitzgerald, C. — This is an action of claim and delivery, brought by plaintiff against the defendants, for the possession of 230 bars of base bullion, or its alleged value, and damages for its detention.

The allegations of the complaint and the averment of value are specifically denied by the answer, and for a further separate defense, defendants justify under a pledge.

The case was tried by the court without a jury, and judgment rendered in the alternative in favor of defendants. The appeal is taken from the judgment and the order denying plaintiff’s motion for a new trial.

[340]The facts necessary to be stated in connection with the points upon which we have rested our decision are as follows: —

On the thirtieth and thirty-first days of October, 1884, the defendants, Harris and Rhine, partners doing business as merchants at Independence, in the county of Inyo, California, commenced two actions, one for $386.64, and another for $589.11, against the Owens River Mining and Smelting Company, a corporation of this state, having its principal place of business in San Francisco, and its smelting works and mining property in Inyo County; that thereafter writs of attachment were issued at the instance of Harris and Rhine, and placed in the hands of the sheriff of Inyo County, who executed the same by levying upon and taking into his possession, with other property, the bullion in question as the property of the said corporation.

Afterwards, on the fifth day of November, 1884, one . A. P. Minear, the superintendent of the company, and in charge of its smelting-works, mining property, and business in Inyo County, for the purpose of releasing the bullion and all the property of the company in said county from these attachments, thereby enabling it to continue the operation of its smelting-works and the working of its mines, agreed to deliver, and subsequently upon the release thereof did deliver, the bullion in question to Harris and Rhine, in pledge, to secure to them the payment of a valid and undisputed debt of the corporation,- with the undertaking and agreement, on the part of Harris and Rhine, that they should ship the bullion to the Selby Smelting and Lead Company of San Francisco, to be reduced and refined by it, and that they should cause it to be sold, and out of the proceeds retain the amount of their claim, costs of transportation, reducing, and refining, and pay over the balance to the corporation, or its order.