Craig v. Godfroy. CRAIG VS. GODFROY et al. The memorandum required by the Statute of Frauds to be entered by an auctioneer in his sale book, must be made at the very time of the sale, or the vendee will not be bound by the contract; So held, in a case where the sale at auction took place in the forenoon, and the memorandum was not made by the auctioneer before the evening of the same day. The memorandum of an auctioneer is looked upon as a contract between the vendor and vendee reduced to writing, and executed by their mutual agent, who ceases to be such agent after the sale is closed. Where the rights of parties are concerned, a day will not be considered a unit, but inquiry may be made as to the very point of time when an act was done. APPEAL from the superior court of the city of San Francisco. The only fact necessary to be stated, which is not mentioned in the opinion of the court, is, that the sale by the auctioneer took place in the forenoon. Calhoun Benham, for the plaintiff. Hall McAllister, for the defendants. By the Court, HASTINGS, Ch. J. The liability of the defendants depends upon a construction of the Statute of Frauds, in relation to sales by auctioneers, in favor of the validity of whose sales it is enacted as follows: That the "auctioneer shall at the "time of sale enter in a sale book a memorandum, specifying "the nature and price of the property sold, the terms of the sale, the name of the purchaser, and the name of the person (6 on whose account the sale is made," &c. The name of the person on whose account the sale was made, was not written in the sale book until the evening of the day of sale, or during the next day. The memorandum then was not made at the time, and therefore the sale was not binding. This objection is not merely technical. The memoranda of auctioneers are the substitutes for contracts, reduced to writing, and signed by the par Burt v. Scrantom. ties. The auctioneer is the agent of each party at the time of the sale, and not afterwards. On the part of the defendants this contract was not executed until after the sale was closed. The auctioneer then had no authority to bind the defendants, by signing their name to the contract, or entering it in the sale book, which in effect is the same thing. The case of Hicks et al. v. Whitmore, (12 Wendell, 548,) cited by counsel, is precisely similar to this case, and settles the question, the statute of New York being the same. The court held in that case, that a memorandum entered in the name of the person on whose account the sale was made, but one hour after the sale, would not bind the vendor. It is therefore unnecessary to examine the other points of the appellants, believing the sale to be void for the reason above stated. Respondent contends, that inasmuch as a day is to be considered a point of time, therefore, if the memorandum was made during the day, it was made at the time of the sale. Most of the fiction about time, and the computation of time, is not now recognised as law, and especially by this court, as in the case of The People ex rel. Campbell v. Clark, (ante, p. 406,) we held that a day is not to be considered a unit, to the prejudice of the rights of a party, and that an examination should be had of the very point of time, when an act was done, as the approval of an act of the legislature by the executive. The judgment is reversed. BURT et al. vs. SCRANTOM et al. Where suit is brought against a person in a county other than that in which he resides, he has thirty days within which to answer, exclusive of the day on which the summons is served, and a judgment by default before the expiration of the full time, will be reversed on appeal. APPEAL from the district court of the ninth judicial district. The facts will be found in the opinion of the court. Webb v. Winter. By the Court, HASTINGS, Ch. J. This action was commenced on the 8th day of March A. D. 1851, in Bute county, ninth judicial district, the plaintiffs being residents of this county, and the defendants residents of Sacramento county. The summons was issued on the 10th day of March and was served on the 12th. The answer was filed on the 14th day of April; and the term of the court commenced on the 9th day of April. The defendants had thirty days after the service, within which to answer. The default was taken on the 11th day of April, which was irregular, as thirty days had not elapsed excluding the day of service. A jury was afterwards called, who found a verdict for plaintiffs, and final judgment was entered accordingly. These proceedings were also irregular, as the trial could not be had under the 23d and 27th Rules adopted by the supreme court for the government of the district courts. The judgment. is therefore reversed, and the cause remanded for a new trial. WEBB et al. vs. WINTER et al. The consignee named in a bill of lading is to be deemed, prima facie, the owner of the goods mentioned therein, and upon payment of freight, may maintain an action against any person who assumes a control over them in violation of his right of property. A merchant of Baltimore shipped to the plaintiffs at San Francisco certain goods by a bill of lading in which they were named as the consignees, and which required the delivery of the goods to them, on their paying freight. On the arrival of the ship at San Francisco, the defendants, who were the general consignees of the vessel, indorsed on the bill of lading an order to the master to deliver the goods to the plaintiffs, and afterwards indorsed on a duplicate bill of lading an order to the master to deliver the same goods to D. & H. The latter bill of lading being first presented, the goods were delivered to D. & H. Held, in an action brought to recover the value of the goods, it appearing the plaintiffs had paid the freight, or tendered payment of it, that the property in the goods was vested in them, and that the defendants were liable for a conversion. APPEAL from the district court of the district of San Francisco. The facts are stated in the opinion of the court. Webb v. Winter. Elisha Cook, for the plaintiffs. Mr. Botts, for the defendants. By the Court, HASTINGS, Ch. J. Moore & Griffith, of Baltimore, shipped to the plaintiffs at San Francisco ten boxes and five trunks, being in all fifteen packages. By the bill of lading the goods were to be delivered to the plaintiffs. The defendants were the general consignees of the ship. On the arrival of the ship at San Francisco, the defendants indorsed on the bill of lading held by the plaintiffs an order to the master to deliver the goods to the plaintiffs. Subsequently, another bill of lading for goods of the same description was presented to the defendants, by another party, and the defendants indorsed an order to the master to deliver such goods to Dall & Austin, the holders of the bill of lading last presented. The last bill was first presented, and the goods delivered according to the order of the defendants. The plaintiffs, on calling for their goods, found they had been delivered to Dall & Austin, and thereupon they brought suit against the defendants for the value of the goods. The goods were the property of the plaintiffs, and the freight having been paid, the consignees of the vessel, by their order, had surrendered them to the control of the owners, and they were subject to their order, and to the order of no other person. The defendants had no greater right to take these goods and dispose of them to Dall & Austin than the other goods and chattels of the plaintiffs. There was a conversion for which the defendants are clearly liable. That they were the agents of the owners of the ship will not relieve them from such liability. The master of the ship, the owners, the person who received the goods, may all be liable for a conversion of the plaintiffs' property. (See Angell on Com. Carriers, sec. 324.) The judgment is therefore affirmed.(a) (a) Upon a motion for a re-hearing in the above case, the following opinion was given by HASTINGS, Ch. J. I see no reason for granting a re-hearing. If, as stated in C Brown v. O'Connor. BROWN vs. O'CONNOR. A grant of a 50 vara lot, at the Mission Dolores, made by a Mexican Alcalde in 1842, The principle of the cases of Suñol v. Hepburn, (ante, p. 252,) and Woodworth v. The case of Reynolds v. West, (ante, p. 322,) affirmed. APPEAL from the district court of the fourth judicial district. The facts of the case are stated in the opinion of the court. By the Court, HASTINGS, Ch. J. This was an action originally instituted before the court of First Instance of San Fran the papers for the motion, the action was upon a contract and not a tort, then certainly the case is with the plaintiffs, for they have the right to waive the tort and sue in assumpsit on an implied contract to pay the value of the goods-but the plaintiffs complain of a conversion. In their complaint, they distinctly aver that the defendants had converted the goods by delivering them or ordering them to be delivered "to some other person." In the petition for a re-hearing it is stated that the complaint sets forth no cause of action, because it alleges no property in the goods. The complaint, the bill of lading, and the agreed statement of facts, show that Moore & Griffith shipped the goods to plaintiffs, to be delivered to them upon the sole condition of payment of freight. The presumption therefore is, that they were the owners of the goods, having the right of property in them. And from the indorsement on the bill of lading by the defendants of the order to the master, it is to be presumed the freight was paid. The statement of facts shows that the freight was tendered, so that they had the right of possession. There is no evidence that any other person was the owner of the goods, nor is it even averred in the pleadings that such was the fact. The general consignees of the vessel had no right to dispute the right of the plaintiffs to the immediate possession. They should have been governed by the bill of lading first presented. Motion denied. |