Visher v. Smith

Fitzgerald, C. The complaint in this action substantially alleges that the defendants were, at the times named therein, engaged as copartners in the business of warehousemen, and, as such, doing a general storage business; that “ prior to the third day of July, 1888,” plaintiff delivered to the defendants for storage, and stored with them, 1,040 sacks of barley, in consideration and acknowledgment of which the defendants then and there executed to plaintiff a receipt and contract in the words and figures following, to wit: —

“No. 36. Stockton, Cal., July 3, 1888.

“ Received on storage in Bagg’s warehouse, awaiting transportation for account of P. Visher, the following described merchandise at the rate of $0.75 per ton for the season ending June 1, 1889, deliverable (damage by the elements excepted) only on the return of this receipt and charges paid.

[263]“ Marks.

Pile No. 151.

One thousand and forty sacks of barley weighing one hundred thousand and fifteen lbs.

“ Sacks 1,040.

“ Weighing 100,015 lbs.

“ (Signed) Smith & Wright.”

That plaintiff is now, and ever since its delivery to him by defendants has been, the owner and holder of said receipt; that storage was paid by plaintiff on the barley for the season ending June 1, 1889; that on or about the second day of September, 1890, he produced said receipt and presented it to the defendants without any indorsement thereon, and in the same condition as when executed, and at the same time tendered to them all charges due for storage on said barley for the seasons ending June 1, 1890, and June 1, 1891, and then and there demanded the delivery of the barley to him, also offering to surrender and give up the receipt upon the delivery thereof. The defendants refused to deliver the barley, without giving any excuse or reason therefor.

Plaintiff demands judgment against the defendants for the recovery of the possession of the barley or for the sum of $1,350, the alleged value thereof, in case delivery cannot be had.

The complaint was demurred to on the ground that it “ does not state facts sufficient to constitute a cause of action.” The demurrer was sustained by the court, and upon plaintiff refusing to amend his complaint, judgment final was rendered in favor of the defendants. The case comes here by appeal upon the judgment roll alone.