Summary
In Seligman v. Armando, 94 Cal. 314, the property had been so intermingled with the goods of defendant that they were not distinguishable, and it was held that it was not necessary that the judgment should be in the alternative form. (See, also, DeThomas v. Witherby, 61 Cal. 92.)
Summary of this case from Erreca v. MeyerOpinion
Appeal from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial.
COUNSEL
The judgment was not in the alternative, as required by section 667 of the Code of Civil Procedure, and should therefore be reversed. (Washburn v. Huntington , 78 Cal. 573; Berson v. Nunan , 63 Cal. 552; Kneebone v. Kneebone , 83 Cal. 645; McCue v. Tunstead , 66 Cal. 486; Campbell v. Jones , 38 Cal. 507; Welch v. Smith , 45 Cal. 230.)
Smith, Winder & Smith, for Appellant.
Graff & Latham, for Respondent.
The plaintiff was entitled to all the property of the insolvent, and could follow it into the store of the defendant, whose own wrong caused them to be indistinguishable. (Hart v. Ten Eyck, 2 Johns. Ch. 108; 2 Kent's Com., sec. 365; Wellington v. Sedgwick , 12 Cal. 476.) The purchase was void against the assignee. (Insolvent Law, sec. 55; Washburn v. Huntington , 78 Cal. 573.) As the property had been hopelessly lost by its confusion with other goods, a judgment in the alternative was unnecessary. (Caruthers v. Hensley , 90 Cal. 559; Claudius v. Aguirre , 89 Cal. 501; Burke v. Koch , 75 Cal. 356.)
JUDGES: In Bank. Paterson, J. Sharpstein, J., Harrison, J., McFarland, J., Garoutte, J., and De Haven, J., concurred.
OPINION
PATERSON, Judge
The appellant relies for a reversal of the judgment upon the insufficiency of the evidence to support the findings. We have read the testimony, and think there is abundant evidence to support all the findings of the court. While it is true the only direct testimony as to the value of the goods taken is that of the defendant, there is sufficient evidence in the statement to support the finding of the court that the property was worth five hundred dollars. Defendant testified that she paid Mrs. Calori $ 325 for the property, and that the price agreed upon was "a little less than she had paid." Mrs. Calori, one of the witnesses, testified that the goods in the store, one week before the attachment was levied, were worth about two thousand five hundred dollars; and that at the time of the attachment the stock was worth no more than eight hundred dollars. According to the testimony of the defendant, the goods sold in the ordinary course of business during the week previous to the attachment did not exceed in value the sum of six hundred dollars.
There is enough in the defendant's own testimony to support the finding that she was aware of the fact that Mrs. Calori was insolvent at the time the goods were removed from the store. (Washburn v. Huntington , 78 Cal. 577.)
It is claimed that there is nothing to show that the defendant "confused and mixed said goods with a stock of groceries owned by her in said building so that the same were indistinguishable." C. H. Plummer, a salesman for Newmark & Co., [29 P. 711] testified that he examined the goods in the store of the defendant and found a large number of articles which had been sold to Mrs. Calori, but that the goods taken from the Calori store were, with the exception of a few articles, so intermingled with the goods of the defendant that they were not distinguishable. It was not necessary, therefore, that the judgment should be in the alternative form. (Caruthers v. Hensley , 90 Cal. 559.)
The defendant was not prejudiced by the ruling of the court sustaining the objection to the question, "Did you know at that time that Mrs. Calori contemplated going into insolvency?" The defendant had testified previously that she did not know that her sister, Mrs. Calori, was insolvent, and in reply to subsequent questions, stated that she made no inquiry with regard to the financial condition of Mrs. Calori, and supposed that the business was "going good with them."
While the complaint cannot be regarded as a model of pleading, we think it is sufficient to support the judgment. The objections now urged against it should have been made by demurrer on the ground of uncertainty. No demurrer to the complaint was filed.
Judgment and order affirmed.