Malone v. Plato

22 Cal. 103

• Court: California Supreme Court
• Decided: July 1, 1863
• Status: Published

Opinion

Norton, J. delivered the opinion of the Court—Cope, C. J. concurring.

in the case of Elmore v. Stone (1 Taunt. 458), after the sale had been agreed upon, the purchaser requested the seller to keep the horse for him on livery, as he, the purchaser, had no stable. The seller thereupon removed the horse from his sale stable, where he had been previously kept, and put him in his livery stable. This was held a sufficient delivery. The case has been treated as of doubtful authority, and when referred to has been sustained only upon the ground that the seller, by an unequivocal act, done at the request of the purchaser, had changed his possession of the horse from that of an owner to that of a livery stable keeper. It appears to be entirely settled that to comply with the requirements of the Statute of Frauds the transfer of the possession must be evidenced by acts, and cannot be effected by mere words. If the delivery may be constructive instead of the actual change of location of the body of the property sold, when it is bulky, yet it must be shown by some unequivocal act. (Tempest v. Fitzgerald, 3 Bar. & Ald. 680; Carter v. Toussaint, 5 Id. 855; Shindler v. Houston, 1 Com. 261.)

In the present case no act was done by either parly indicating any change in the character of the possession by which the plaintiff held the horses.

In allowing the jury to decide, from the proofs given in this case, whether or not the parties understood that the horses were to be deemed delivered, the Court below gave the plaintiff a chance for a verdict, which, if obtained, it would have been difficult under the authorities to sustain, and upon the question thus submitted to the jury the evidence was such as to preclude this Court from disturbing the verdict.

The judgment is affirmed.