Thompson v. Paige & O'Neal

Headnote

Plaintiff sues for damages in levying on fruit trees shipped by him to W., and landed to W.’s order on the wharf at Stockton, claiming that the trees were not paid for, and not subject to W.’s debts, for want of delivery, and asked, on the trial, this 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 StateHeld, that the proposition is too broadly asserted, even if there were any proof on which it could rest—but in this .case there is no proof of the insolvency of W.

Plaintiff also asked this instruction: “ 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 themHeld, that this proposition is not strictly correct; that if the trees bargained for were put out on the wharf, marked for W., with the intention of his taking them, and if this were done by his order, they would vest in him, especially if he was

willing to consider this a good delivery; that there is in the testimony here, no predicate laid for the doctrine of stoppage in transitu, or that plaintiff claimed the right to stop the trees.

Where a party asks an abstract proposition of law, by way of instruction to a jury, he takes the risk of its being correct in all its parts.

As to new trial because of an incompetent juror, see facts.

Appeal from the Fifth District.

The facts as to the shipment of the trees are these. In the latter part of December, 1857, or 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 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 had 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.