Decker v. Hughes

SHAFTER, J. Replevin to recover the possession of two billiard tables. It was admitted that the tables belonged originally to the plaintiff, but the defendant claimed that they had become his property by purchase before the bringing of the action. The contract under which the defendant claimed was made by the plaintiff with one Clayton, and was as follows:

“It is hereby mutually agreed between parties whose names are signed to this instrument, that R. II. Vance, as agent for Levi Decker, has this first day of July, 1862,' leased to II. J. Clayton of San Francisco three rosewood billiard tables, slate beds, complete, for the term of one year from date at the [194]monthly rent of one hundred dollars payable monthly in advance. The said tables are to be placed in the Lick House in this city and to be put up and kept in repair by said Clajdon at his own expense. It is also further agreed that the said Clayton has the privilege of purchasing the said tables on or before the expiration of this lease, for the sum of twelve hundred dollars, with interest added at the rate of two per cent a month from the commencement of this lease to the time of purchase. It is also further agreed that if the said Clayton should elect to purchase the said tables within the term of this lease, all rents which he may have paid for the use of said tables shall be counted in as part payment for said tables.

“San Francisco, May 29, 1862.”

This contract was signed and sealed by both parties.

It appeared that R. H. Vance was general agent of plaintiff, and had authority to do anything in the way of making contracts for him — plaintiff residing in New York. That on the 5th of July, 1862, the plaintiff brought suit against Clayton for one hundred dollars, for the rent mentioned in the agreement set out in the answer, for the month of July, 1862, and recovered a judgment for said amount and costs, amounting to one hundred and eleven dollars and fifty cents, which was paid by Clayton. That Clayton thereafter assigned all his rights and claims of every kind under and by virtue of said agreement, and said payment under said judgment, to the defendant, and plaintiff had notice thereof. That after said assignment, plaintiff’s agent delivered to Clayton (who informed him he had assigned to defendant) three billiard tables, packed up, which were then, delivered to defendant by Clayton. That defendant unpacked the tables; found one badly damaged and imperfect; notified plaintiff’s agent, who came and inspected it, and took it away for repair, promising to deliver another in its place.