From Casetext: Smarter Legal Research

Cardinell v. Bennett

Supreme Court of California
Oct 1, 1877
52 Cal. 476 (Cal. 1877)

Summary

In Cardinell v. Bennett, 52 Cal. 476, it was held one who enters into a contract with another, whereby it is agreed that he shall own certain personal property on the performance of certain conditions by him, has no complete ownership, either general or special, in the property by virtue of the contract. It is held to be a contract for purchase, and not a purchase.

Summary of this case from Yukon River Steamboat Co. v. Gratto

Opinion

         Appeal from the District Court, Nineteenth Judicial District, City and County of San Francisco.

         Wm. H. Carpenter owned the horse " Chief Crowley," and on the 7th day of February, 1874, entered into an agreement with the plaintiff, by which the plaintiff was to give him his (Cardinell's) buggy and two hundred and fifty dollars for the horse, on Monday, the 9th day of February, following. On the 7th, after the agreement had been made with the plaintiff, Carpenter sold the horse to one Bennett for three hundred and fifty dollars, but at the same time informed Bennett of his agreement with the plaintiff. The plaintiff had paid Carpenter one dollar when he contracted with him, and on the 9th he called on Carpenter and delivered him his buggy, tendered him two hundred and forty-nine dollars, and demanded " Chief Crowley." Failing to obtain the horse, he brought this action to recover " Chief Crowley," or his value. The plaintiff recovered judgment, and the defendant appealed.

         COUNSEL:

         The agreement between Carpenter and Cardinell was not a sale, but an agreement to sell--an executory, not an executed, contract. Cardinell never owned or acquired the title to the horse. It never was transferred to him, and he never had the right to its possession. ( Civil Code, secs. 1661, 1721, 1726- 8; Story on Sales, secs. 1 and 274.) An action of this kind cannot be maintained, unless the plaintiff, at the time of the conversion, is the owner of the property, and entitled to its immediate possession. (1 Chitty on Pleadings, 148-9; 2 Greenl. on Ev. secs. 561-3.) Replevin or trover was not the plaintiff's remedy, but an action for damages. (Story on Sales, secs. 430, 450; McDonald v. Hewitt, 15 Johns. 349.)

         Tilden & Wilson, for the Appellant.

         Thomas V. O'Brien, for the Respondent.


         Plaintiff was entitled absolutely to the possession of the horse, as against either Carpenter or Bennett, on payment or tender. ( Civil Code, secs. 1748, 1822, 2905, 1504, 1512; Ingersoll & Borick v. Emmerson, 1 Smith's Ind. 77; Satters v. Everest, 20 Wend. 267; Roland v. Gundy, 5 Ohio, 202, and cases; Story on Bailments, sec. 102.) As to the effect of tender, see Kirtright v. Cady , 21 N.Y. 343.)

         OPINION          By the Court:

         Plaintiff had no property, either general or special, in the horse " Chief Crowley" at the time of the alleged conversion, or when this action was commenced. The transaction did not amount to a sale on credit from Carpenter to Cardinell, but a contract whereby it was agreed that the latter should acquire the property on the performance of certain conditions promised by him to be performed.

         Judgment and order reversed and cause remanded.


Summaries of

Cardinell v. Bennett

Supreme Court of California
Oct 1, 1877
52 Cal. 476 (Cal. 1877)

In Cardinell v. Bennett, 52 Cal. 476, it was held one who enters into a contract with another, whereby it is agreed that he shall own certain personal property on the performance of certain conditions by him, has no complete ownership, either general or special, in the property by virtue of the contract. It is held to be a contract for purchase, and not a purchase.

Summary of this case from Yukon River Steamboat Co. v. Gratto
Case details for

Cardinell v. Bennett

Case Details

Full title:JOHN A. CARDINELL v. CHARLES A. BENNETT et al.

Court:Supreme Court of California

Date published: Oct 1, 1877

Citations

52 Cal. 476 (Cal. 1877)

Citing Cases

Yukon River Steamboat Co. v. Gratto

That was a case for the construction of what was called "Stevens Battery," for the government, upon payments…

Young v. Matthew Turner Company

The prayer was for that sum of money with interest, and the case having been submitted on the pleadings the…