Stewart v. Naud

HAYNES, C. Defendant conducted the business of a warehouseman in the city of Los Angeles. Some time prior to August 9, 1895, the plaintiff stored in defendant’s warehouse fourteen boxes described as containing household goods, which, as shown by the testimony of the plaintiff, were packed in April, 1892, in Canada, and shipped to Los Angeles. In July, 1895, plaintiff paid the freight charges and storage up to August 9, 1895, and defendant gave him a warehouse receipt for said goods bearing said date, in which the subsequent storage charges were fixed at one dollar and fifty cents per month. On September 1, 1896, no part of the storage dues accruing after August 9, 1895, having been paid, the defendant sold said fourteen packages to pay said storage charges.

This action is for the conversion of said goods by the defendant. It was tried by the court without a jury, the findings and judgment were for the plaintiff, and defendant appeals from the judgment and from an order denying a new trial.

Many questions are discussed by counsel; but the more important are as to the sufficiency of the notice of sale, and whether the conditions existed which justified or authorized a sale.

Touching the notice of sale the answer alleged: “That prior to said sale she caused due and sufficient notice thereof to be [598]published daily in the Los Angeles ‘Herald/ a daily newspaper of general circulation, printed and published in Los Angeles city aforesaid, for ten consecutive days next before said day of sale, and caused a copy of said notice to be posted for the same period in a conspicuous place at the auction room of Thomas B. Clark (a duly licensed auctioneer, by whom said sale was made and conducted), at a room 232 'West JFirst street, in Los Angeles city, and a further copy of said notice to be posted for the same period in a conspicuous place in the said warehouse.” There was no allegation of notice to the plaintiff.

There was evidence tending to show that about the 5th of August the defendant’s bookkeeper wrote a letter to the plaintiff, informing him that his goods would be sold on the 1st of September, unless the storage charges were paid prior to the sale, which letter was addressed to the plaintiff at “Los Angeles City,” that he had no exact information as to his residence, and that the letter was never returned; while on the part of the plaintiff the evidence was to the effect that it was never received, and that the city directory showed that there were several persons in the city having the same name as the plaintiff.