Summary
In Thompson v. Paige, 16 Cal. 77, it was held that an instruction "That a man who is insolvent for the want of means to pay his debts in this state is, in law, insolvent, without reference to any property in another state" -- was too broadly stated.
Summary of this case from Cook v. CockinsOpinion
Appeal from the Fifth District.
The facts as to the shipment of the trees are these. In the latter part of December, 1857, or the first part of January, 1858, Webster, who lives at or near Stockton, called at the nursery of plaintiff in Napa county, and examined his stock of trees, stating that he would probably order some. In a few days he did send an order from Stockton to plaintiff for trees. Plaintiff, not having the kind of trees ordered, did not fill the order, and Webster procured them from plaintiff's nursery in San Francisco, on another order. Subsequently, about January, 6th, 1858, plaintiff, having trees he thought would suit Webster, shipped two bundles, marked " George Webster," from Napa to Stockton. The trees were landed on the morning of January 11th, 1858, and were levied on by defendant O'Neal as Sheriff, under an attachment in the suit of Paige v. Webster. Webster testified that he did not order these trees, did not own them, and knew nothing of their arrival at Stockton until served with the attachment papers in the above suit, in the afternoon of said January 11th; that he had bought other trees previously of plaintiff, which had been shipped to him, marked as these were, and had been received by him. For other facts, or rather want of facts, see opinion.
As to the juror the facts are, that on motion for new trial plaintiff's attorney made affidavit--his client being out of the district--that, since the trial, he has discovered one of the jurors, Melville, to be incompetent, because a resident of the State only three months. Melville also made affidavit as to his being a resident of the State for that time only.
Verdict and judgment for defendants. Plaintiff appeals.
Judgment affirmed.
COUNSEL
Otis L. Bridges, for Appellant, cited Chitty on Cont. 432-5; 12 Pick. 313; Ham. 98; 3 Shepl. 314; Crawshay v. Eades, 1 Barn. & Cress. 184.
Hall & Huggins, for Respondents.
JUDGES: Baldwin, J. delivered the opinion of the Court. Cope, J. and Field, C. J. concurring.
OPINION
BALDWIN, Judge
This was an action for damages brought against defendants, one of whom was Sheriff, for levying on certain fruit trees shipped by plaintiff to one Webster, and landed to his order on the wharf at Stockton. It was claimed by the plaintiff that these trees were sent to Webster, who had not paid for them, and that they were not subject to his debts for want of delivery.
But two instructions offered at the instance of the plaintiff were refused and excepted to. Both are abstract propositions, and not strictly correct as offered. 1. We see no evidence in respect to the insolvency of Webster, and the proposition is too broadly asserted, if there was any proof upon which it could rest. 2. The other (the 4th) is in these words: " That a delivery at the wharf is not sufficient, unless notice be previously given to the vendee of their arrival, and that sufficient time be allowed to enable him to receive and remove them ." If the goods bargained for were put out on the wharf marked for Webster, and with the intention of Webster's taking them, and if this were done by his order, this would be sufficient to vest the property in Webster, especially if Webster was willing to consider this a good delivery. But where a party asks an abstract proposition, he must take the risk of its being correct in all its parts. We see no predicate laid in the testimony for the application of the doctrine of stoppage in transitu, or that the plaintiff claimed the right to stop the goods.
There is nothing in the point as to the juror.
Judgment affirmed.