Middlesworth v. Sedgwick

10 Cal. 392

• Court: California Supreme Court
• Decided: July 1, 1858
• Status: Published

Opinion

Baldwin, J., delivered the opinion of the Court

Terry, C. J., concurring.

Trover for the conversion of forty-two barrels of vinegar.

It is not necessary to consider any point in this curious case but one, which seems fatal to respondent. No proof was made by the plaintiff which, on his own case, entitled him to recover. The barrels in which the vinegar was, it seems, were in a brewery, occupied by Slater & Anderson, against whom the plaintiff had process. They were removed from the premises and put in the keeping of one Garrison, who receipted for this and other property to the sheriff. After this, and while the barrels were in possession of Garrison, Middlesworth turned the vinegar over by making a bill of sale of it to Garrison, as collateral security for a debt due to Garrison, the keeper. Garrison says that he gave back the bill of sale to Middlesworth, and that the plaintiff still owes the money, and that he, witness, does not know that he has any interest in the judgment that may be had in this suit. We think even if this proof shows that the plaintiff ever had any interest in this vinegar, it shows that he parted with all his interest before the bringing of the suit. By the bill of sale and contract, he parted with his title to Garrison, who then had possession, and Garrison’s merely handing back the bill of sale to plaintiff did not re-vest the title in him. In trover, plaintiff must either have the possession, or immediate right to the possession, to maintain the action.

This being the proof as to the title, and being insufficient to maintain it, the Court should have granted a new trial.

Judgment reversed, and new trial ordered.