Opinion
Appeal from the Superior Court of San Francisco.
The defendants, merchants in San Francisco, made a sale in writing to one S. H. Allen of forty barrels of whiskey, to arrive on the ship Golden Fleece.
Allen paid a portion of the purchase money, and before the arrival of the ship, assigned the memorandum of sale to the plaintiff for a valuable consideration.
After the arrival of the ship, the plaintiff within a reasonable time demanded of the defendants the whiskey, and at the same time tendered them the balance of the purchase money. Defendants refused to deliver the whiskey, assigning as a reason that it had been attached in their hands by the Sheriff as the property of Allen. Afterwards they sold the whiskey and paid over the amount realized to the attaching creditors.
The jury found for the plaintiff. The Court overruled a motion for a new trial, and defendants appealed.
COUNSEL:
In support of the appeal cited Practice Act, § 5; Bank v. Knisey , 5 Ala. 9; McCann v. Wood, 4 Ibid. 258; Clagswell v. McGuisey, 4 Dev. 86; Warren v. Copeland, 4 Met. 594; Barney v. Douglass, 19 Verm. 98; Strong v. Mitchell, Ibid. 644; Foster v. Mix , 20 Conn. 395.
Baldwin & Bowman, for Appellants.
A. M. Hitchcock, for Respondent.
The charge of the Court below was correct, and the verdict of the jury is in accordance with the law. Story on Cont. §§ 226, 436. Siffkin v. Boyd, 2 Campb. 327. Russell v. Nichols, 3 Wend. 112. Shields v. Potter, 4 Comst. 122. Story on Confl. of Laws, 386. Allair v. Schenck, 3 Hill, 228. Martindale v. Smith, 41 Eng. Com. Law, 592.
JUDGES: Murray, C. J., delivered the opinion of the Court. Heydenfeldt, J., concurred.
OPINION
MURRAY, Judge
The Court below properly instructed the jury, that if the plaintiff was the assignee in good faith, and for a valuable consideration, of the invoice of goods in controversy, and had demanded the same within a reasonable time after the arrival of the vessel, and tendered the balance of the purchase money, that no notice of such assignment was necessary to charge the defendants.
In a case where the assignee had allowed the party to answer the attachment, and the money to be made by the process of the Court, the rule would be different. Such is not the fact in the present case. The defendants have undertaken to adjust this matter between themselves and the attaching creditors, to the absolute exclusion of the plaintiff's rights.
The fifth section of the Practice Act of 1851 does not extend to a case like the present, and the authorities cited from other States being based on express statute, have no application.
Judgment affirmed, with costs.