Moisant v. McPhee

Belcher, C. This is an action to recover the value of 156 cords of oak tan-bark, alleged to have been in the possession of and owned by the plaintiff, and to have been wrongfully taken by the defendant and converted to his own use on the fifth day of June, 1888.

It appears from the findings and evidence, that on the eleventh day of January, 1884, one Warren was the owner of a tract of land in Mendocino County, and on that day conveyed the same to the defendant and one Markle, who were partners doing business under the firm name of McPhee & Markle. The. conveyance was by a deed absolute in form, but was intended as a mortgage to secure the payment of about two hundred dollars, then owing by the grantor to the grantees for goods, wares, and merchandise. In May, 1886, the two hundred dollars being still unpaid, Warren made a contract with McPhee & Markle, by the terms of which he [78]was to go upon the land conveyed, and peel tan-bark thereon and put it on the road, and they were to advance to him, to pay the expenses of preparing the bark, not exceeding $5.50 per cord; and when the barb -was ready for shipment, they were to ship it to San Francisco and sell it, and after deducting from the proceeds expenses of hauling, freight, and all advances, were to apply the balance in payment of his indebtedness, and if any surplus remained, pay it over to him. During the year 1886, Warren peeled 183 cords of bark and delivered it over to McPhee & Markle, and McPhee subsequently, having assumed the bark contract as between himself and Markle, sold it, and applied the proceeds as agreed.

During the summer of 1887, Warren peeled and prepared the bark in controversy on the deeded land, and while doing so, defendant furnished him supplies and money to meet his expenses. In the fall of the year, at the request of Warren, defendant sent and paid a teamster to haul the bark to Bear Harbor landing. One Keller was foreman at the. landing, and Warren asked him where he should pile the bark, and a space was allotted him for that purpose. The bark was piled by Warren on the space allotted, and after it was all delivered, was shedded in by him to protect it from the rains. In December, 1887, plaintiff, Warren, and Keller met at the landing, and after measuring the pile of bark, Warren sold it to plaintiff for $1,404, and executed to him a bill of sale of it. Plaintiff then put Keller in charge of the bark for him, and subsequently put up notices on it that he was the owner. Plaintiff paid the purchase price in full, and at the time of his purchase had no notice that defendant had or made any claim to it. At the time of this sale, Warren was indebted to the defendant for supplies furnished and money paid out and advanced, as before ^stated, in about the sum of one thousand dollars. This sum not being paid, defendant, on June 5,1888, shipped the bark to San Francisco, and converted it to his own use.