Douglass v. Kraft.

ard, (13 John.,) and King v. Baldwin, (17 John.,) where it was held that the neglect of the holder of a note to sue when requested, discharged the surety; but this doctrine was expressly overruled in Barst v. Henrick, (4 Hill;) and repudiated as authority by this Court in Humphreys v. Yale.

In Barst v. Henrick, the Court held that a neglect to sue after request, would discharge the surety, provided the principal was solvent at the time of the request, and became insolvent afterwards, and before the institution of the suit.

We are inclined to doubt the correctness of the rule here laid down, but if we admit the authority of the case, we do not think the facts disclosed by the record bring this case within the rule.

The finding of insolvency of the principal, at the time of instituting the suit, is inconsistent with the other findings of the Court, and the premises in which the finding is based, do not sustain the conclusion.

The party was solvent on the thirteenth. It does not appear that he afterwards met with any loss. No debt is incurred, no attachment or execution is levied on his property. The fact on which the finding is based, is that Burlingame, after the thirteenth, sold property for a consideration of $2,000. How the sale of property for a valuable consideration, should, in so short a period, cause the insolvency of the party, the record does not disclose, and we are unable to discover.

Judgment affirmed, with ten per cent. damages and costs.

DOUGLASS v. H. KRAFT.

The rule is that when property converted has a fixed value, the measure of damages is that value, with legal interest from the time of its conversion; when the value is fluctuating, the plaintiff may recover the highest value at the time of its conversion, or at any time afterwards.

An objection to the form of a verdict should be made on motion for a new trial. It is too late to raise it in this Court for the first time.

APPEAL from the District Court of the Fifth Judicial District, County of Calaveras.

A statement of the facts appears in the opinion of the Court.

Robinson & Beatty for Appellant.

C. C. Mount for Respondent.

Douglass v. Kraft.

TERRY, C. J., delivered the opinion of the Court-BURNETT, J., concurring.

Plaintiff deposited with defendant, as collateral security for his note of five hundred and eighty dollars, certain auditor's warrants on the treasurer of Calaveras county, amounting in the aggregate to $1350, at the time of the deposit; defendant executed a receipt for the warrants, which he signed R. Kraft.

Some time after the maturity of the note, plaintiff offered to pay the amount, principal and interest, and demanded the delivery of the warrants, which defendant declined, saying that he had sold the warrants, and parted with the note. This action was then instituted for the purpose of compelling defendant to return the warrants or pay their value.

The answer admits the deposit of the warrants and the execution of the receipt set out in the complaint, but alleges that the defendant acted in the transaction as the agent of his wife, who was a sole trader, and that the receipt was signed with the initial of his wife; it also alleges a demand of payment at the maturity of the note; and, on default, a sale of the warrants at their market value at the time, and an application of the proceeds to the payment of the note.

On the trial below, the jury found a verdict for plaintiff, and a new trial being refused, defendant appealed.

Upon an examination of the record, we are not able to discover any error in the rulings of the Court, which could have operated to the prejudice of defendant.

The instruction that plaintiff was entitled to recover the highest market value of the warrants, at any time while in defendant's possession, was erroneous. The defendant was, before the conversion of the warrants, legally in possession of them with plaintiff's consent, and could not be charged with their value during that time. However, as there was no evidence as to the value of the warrants before the conversion, the instruction did not prejudice defendant.

The rule is, when the property converted has a fixed value, the measure of damages is that value, with legal interest from the time of the conversion; when the value is fluctuating, the plaintiff may recover the highest value at the time of the conversion, or at any time afterwards. Abbott, C. J., in Mercer v. Jones, 3 Camp., 476, says: "The amount of damages is for the jury, who may give the value at the time of the conversion, or any subsequent time in their discretion, because the plaintiff might have had a good opportunity of selling the goods, if they had not been detained. My opinion is, that the jury are not at all limited in giving their verdict, by what was the price of the article on the day of the conversion."

In Cortelyou v. Lansing, 2 Caine's Cases in Error, Kent, J., said: "The value of a chattel, at the time of the conversion, is not

Seaver v. Cay.

in all cases the rule of damages in trover. If the thing be of a determinate and fixed value, it may be the rule; but where there is an uncertainty or fluctuation attending the value of the chattel, and it afterwards rises in value, the plaintiff can only be indemnified by giving him the price of it, at the time he calls upon the defendant to restore it, and one of the cases even carries down the value to the time of the trial.”

The jury found for plaintiff the value of the warrants at the time when their return was demanded.

Appellant contends that, inasmuch as the receipt for the warrants was given in the name of R. Kraft, the action can not be maintained against II. Kraft without an allegation of fraud or deception in signing one name for the other, or showing that one was an alias for the person known by the other.

The complaint sufliciently shows that R. Kraft and the defendant are one and the same person; it charges that the warrants were deposited with, and the receipt signed by, the defendant Henry Kraft, and the copy of the receipt, which is set out in the complaint, is signed R. Kraft.

The evidence shows that the defendant acted as principal in accepting the pledge, signing the receipt, and selling the warrants. There is nothing in the record (except the allegation in the answer, which is not supported by any testimony,) to show that there is any such person in existence as R. Kraft, or that defendant assumed to act as the agent of a third party.

The objection to the form of the verdict should have been made on motion for a new trial. It can not be raised here for the first time.

Judgment affirmed.

SEAVER v. CAY AND WIFE.

Where the record shows that a demurrer was interposed to the complaint, and was sustained by the Court, and afterwards, during the same term, a judgment was rendered in favor of the plaintiff, this Court will not presume that the order sustaining the demurrer was set aside by the Court before judgment was rendered.

In such a case the record shows that judgment was improperly rendered.

APPEAL from the District Court of the Tenth Judicial District, County of Yuba.

Bryan & Filkins for Appellants.

Charles Lindley for Respondent.

Battersby v. Abbott.

TERRY, C. J., delivered the opinion of the Court-BURNETT, J., concurring.

The record in this cause shows a somewhat singular state of

case.

A demurrer to the complaint was interposed, and was sustained by the Court, and afterwards, during the same term, a judgment was rendered in favor of the plaintiff.

Respondent contends that inasmuch as the proceedings of a Court are deemed regular and legal until the contrary is shown, we must presume that the order sustaining the demurrer was set aside by the Court before judgment was entered.

We do not feel at liberty to indulge this presumption in the face of the clerk's certificate as to the correctness of the transcript, and in view of the fact that the respondent has not thought proper to suggest a diminution of the record, in order that the omission might be supplied.

The record shows that the judgment was improperly rendered, and it is reversed, and the cause remanded for further proceedings.

BATTERSBY v. ABBOTT.

A statement on appeal is sufficient when the Judge certifies that it is substantially correct. It is not necessary that the testimony should be stated in the precise words of each witness.

It is no objection that the statement does not affirmatively show that the settlement was upon proper notice, or in the presence of both parties. In the absence of evidence to the contrary, the presumption of law is in favor of the regularity of all official acts. It is error for the Court to charge the jury as to a question of fact, or as to the weight of evidence.

APPEAL from the District Court of the Tenth Judicial District, County of Yuba.

This was an action of ejectment brought to recover the possession of a tract of land, together with damages for its detention.

The defendant claimed title by virtue of a purchase of the premises at sheriff's sale, under an execution issued upon a judgment against the plaintiff; and on the trial introduced in evidence, in support of his claim, the judgment, execution, and sheriff's deed to him for the premises in question. The plaintiff, to rebut this proof on the part of the defendant, introduced evidence to show that the premises had been redeemed prior to the execution of the deed from the sheriff to the defendant.

Battersby v. Abbott.

After the close of the testimony, the Court instructed the jury "to find for the defendant, as the plaintiff had failed to show any payment in redemption of the premises." Plaintiff excepted to this instruction. The jury returned a verdict for the defendant, and judgment was entered thereon. Plaintiff appealed.

It does not appear affirmatively from the statement on appeal, or the record, that the defendant was notified of the settlement by the Judge of the statement. The Judge's certificate to the statement is as follows:

"I hereby certify that the foregoing statement is substantially correct.

(Signed)

"W. T. BARBOUR, District Judge."

Bryan & Filkins for Appellant.

Whatever force might be given to the evidence of Spring, or of the other witnesses, and whether the weight of testimony was or was not with the defendant, the Court clearly overstepped its duty in its charge to the jury.

The Court there tells the jury, in direct words, to find for defendant, as the plaintiff had made out no case. This is so clearly error, that the case can stop here.

Under no decision of any Court can this be sustained. The Court is both Judge and jury, and goes further than Lord Mansfield ever dared to go in his assumption of the powers of Judge and jury in England.

Our system most certainly keeps the two departments of the Court separate. Cons. Cal., Art. 6, § 17.

The Court shall only judge the law, the jury the fact, without the interference or influence of the Court. Wood's Digest, Art. 898, p. 188.

A person could not be excused quoting authority upon a proposition so plain.

We have the case upon the proof, and supposing the law regulating the possession of lands had been sufficiently settled in this State, we refuse to argue the case, leaving it upon the instructions of the Court, and the Court has made the mistake. It tells the jury to bring in a certain verdict, and this never can be allowed. We claim a reversal and new trial.

E. D. Wheeler for Respondent.

1. The statement was settled by the Judge, without any notice to myself, as the attorney of respondent. The one hundred and ninety-fifth section of the Practice Act says, "it shall be settled by the Judge, upon notice." Under that section, I was entitled to notice. The first intimation that I ever had that a statement had been settled, was by finding the statement, already