Garoutte v. Williamson
Before: Beatty, Belcher, Temple
Synopsis
New Trial—Conditional Order Granting Motion—Effect of Refusal to Comply.—Where a motion for a new trial made by the defendants is granted on condition that they pay to the plaintiff within a time named his costs of suit, and the defendants refused to comply with the condition imposed, the motion must be regarded as having been denied.
Trover—Conversion of Wheat—Indorsement of Warehouse Receipt— Pledge—Presumption—Burden of Proof.—In an action of trover to recover damages for the conversion of wheat, the warehouse receipt for which had been indorsed and delivered to a bank, the plaintiff’s ownership of the wheat being proved, it is to be presumed that the plaintiff had a right to its present possession at the time of the conversion, and the burden of proof is upon the defendants to show that the indorsement made upon the back of the warehouse receipt was made by authority, and that on the security of it money was advanced or loaned by the bank which had not been repaid, and that there was an existing indebtedness secured by a pledge of the wheat to the bank at the time of its conversion by the defendants, and, in the absence of such proof, a judgment in favor of the plaintiff cannot be reversed upon the ground that there was no evidence to show that the indebtedness to the bank had been paid at the time of the conversion.
Id.—Effect of Warehouse Receipt—Negotiable Paper.—A warehouse receipt is negotiable paper, and under the statute in relation to warehouse receipts, the property represented thereby is transferable by the indorsement of the party to whose order it was issued.
Appeal—Review oe Instructions—Exceptions Taken too Late.—Errors in the giving or refusing of instructions are errors in law occurring at ■ the trial, which must be excepted to at the time the errors occurred, or they cannot be reviewed upon appeal; and, where the bill of exceptions does not show any attempt to take exception to the action of the court in regard to the instructions until after the jury had retired and deliberated upon their verdict, exceptions thereafter taken are too late, and must be disregarded upon appeal.
Evidence—Removal op Wheat — Declarations op Warehouseman— Ownership—Res Gesta—The statements of a warehouseman as to the ownership of wheat removed from the warehouse and loaded by him upon a barge, identifying the wheat removed, and made at the time of its removal, are admissible in evidence as part of the res gestee.
Opinion — Belcher
' Belcher, C.—This This is an action to recover damages for the conversion of two thousand one hundred and sixty-eight sacks of wheat. The complaint is in the usual form, alleging, the conversion by defendants on the thirteenth day of October, 1892, and the answer denies all of its material averments.
The case was tried before a jury, and the verdict and judgment were in favor of the plaintiff. Defendants moved for a new trial, and their motion was granted on condition that they pay to the plaintiff, within a time named, his costs of suit, amounting to two hundred and twenty-six dollars. They refused to comply with the condition imposed, and, as a consequence, their motion “ must be regarded as having been denied.” (Garoutte v. Haley, 104 Cal. 497.) In due time they appealed from the judgment and the order.
The facts proved on behalf of the plaintiff were in substance as follows: The wheat in controversy was a portion of thirteen thousand four hundred and sixty sacks of wheat which, during the year 1892, was raised on a farm in Yolo county by a firm known as Hays & Garoutte, of which the plaintiff was a member. All of the wheat was taken to and stored in the Phoenix Warehouse at Knight’s Landing, then owned and controlled by one W. P. Merrill. On September 5, 1892, a warehouse receipt for said wheat in the statutory, negotiable form, signed by Merrill, the warehouseman, was issued to Hays & Garoutte; and from that time up to and including October 6, 1892, there was no wheat in the warehouse except that so placed there by Hays & Garoutte.
At some time after Merrill gave the said warehouse receipt to Hays & Garoutte he issued another negotiable warehouse receipt, in the ordinary form, for two thousand one hundred and sixty-eight sacks of -wheat, to one Nelson, as the depositor thereof, but in fact [139]Nelson had not then and never had any wheat in the warehouse.
Subsequently Nelson indorsed and delivered the receipt so received by him to one McGIauflin, and on the 6th of October, 1892, by the direction of McGIauflin and under the superintendence of Merrill, the two thousand one hundred and sixty-eight sacks of wheat in controversy were taken from the warehouse and loaded on a barge and then shipped to Port Costa. “ The said wheat was thereafter, and while in transit to Port Costa, in this state, sold by the said McGIauflin to the defendants in this action, and the said wheat was thereafter delivered to the defendants and received by them into their warehouse at Port Costa on the thirteenth day of October, 1892.”
More from California Supreme Court
- People v. Wende (1979)
- People v. Watson (1956)
- People v. Superior Court (Romero) (1996)
- People v. Kelly (2006)
- Auto Equity Sales, Inc. v. Superior Court (1962)
- Aguilar v. Atlantic Richfield Co. (2001)
- People v. Lewis (2021)
- In Re Estrada (1965)
- Denham v. Superior Court (1970)
- People v. Marsden (1970)