Fitzgerald v. Gorham

4 Cal. 290

Opinion

Mr. J. Heydeneeldt

delivered the opinion of the Court.

Mr. Ch. J. Murray concurred.

By the 15th section of the Statute of Frauds of this State, it is made conclusive evidence of fraud in the sale of goods, unless the sale is “accompanied by an immediate delivery, and be followed by an actual and continued change of possession .”

In this case there was, at the most, a mere constructive change of possession, Josephs was continued in charge and control over the goods; and although the sale to the plaintiffs was in good faith, and Josephs was in like good faith their agent on clerk, jet the very case is presented upon which the statute intended to operate.

The continued- change of possession must be “actual," and not constructive.

Judgment affirmed.