18 Cal. 315, Nightingale v. Scannell

Citation:18 Cal. 315
Opinion Judge:COPE, Judge
Party Name:NIGHTINGALE v. SCANNELL et als.
Attorney:O. L. Shafter & S. Heydenfeldt, for Appellants. Hall McAllister, for Respondent. Geo. F. & Wm. H. Sharp, also for Respondent.
Judge Panel:JUDGES: Cope, J. delivered the opinion of the Court. Field, C. J. concurring.
Case Date:July 01, 1861
Court:Supreme Court of California

Page 315

18 Cal. 315



SCANNELL et als.

Supreme Court of California

July, 1861

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Appeal from the Fourth District.

Action for damages for the seizure and conversion of oil, tallow, camphene fixtures, and various implements connected with an establishment for the manufacture of camphene in the city of San Francisco.

The complaint avers that plaintiff was, on the first of October, 1855, the owner of an undivided third of the property above named, in the " store occupied by the late firm of Gilbert & McCombe," where plaintiff and McCombe were doing business; that defendants Scannell and Crowther seized and converted this stock in trade, worth $ 2,649 30, thereby destroying plaintiff's business, depriving him of his income and only means of support, and ruining his credit and reputation as a merchant; that the trespass was " willful and malicious, in defiance of the most earnest remonstrances of this plaintiff, with full notice of his rights, and an apparent determination to destroy his business and accomplish his ruin; " that McCombe refuses to be party plaintiff, and is therefore made defendant. Prayer for $ 10,000 as plaintiff's proportion of the damages sustained.

The facts seem to be as follows: In May, 1855, defendant, McCombe, and Rosanna Gilbert entered into a copartnership for carrying on the business of a camphene, oil, and turpentine manufactory under the firm name of Gilbert & McCombe. She was a sole trader under the statute, and the wife of George S. Gilbert, who seems to have personally attended to the manufacture of the camphene, etc. On the twenty-second of August, 1855, Rosanna sold her half interest in the concern to McCombe, taking his notes for $ 1,500, he assuming the debts. This sale was evidenced by a bill of sale executed by George S. Gilbert, the husband, as her attorney in fact. She testifies that she authorized her husband to make the sale for cash only, and for the sole purpose of raising money to pay Crowther, who had loaned her the money which she put into the partnership at its formation. Crowther was aware of this sale, having been notified of it at the time. On the thirty-first of August following, Nightingale, plaintiff here, bought of McCombe a one-third interest in the business, in payment of which he credited a note to him of the old firm of Gilbert & McCombe for $ 2,682 25, dated August 20th, 1855, with $ 1,769 71. From this time, Nightingale was at the store of the firm, having charge of the books, receiving the money, etc. Gilbert, the husband, was also there at work as usual, and the sign of Gilbert & McCombe over the door, and their names on the wagon of the house, were not removed. On the eighteenth of September, 1855, Crowther brought suit against Rosanna on her note to him for $ 1,464, with interest, dated May 19th, 1855, issued an attachment and had it levied on her half interest in the stock in trade of said firm, holding that her sale to McCombe was a fraud. The writ was levied by Graham, Scannell's predecessor. Judgment having been obtained, an execution issued on the first of October following, and put in the hands of defendant Scannell, then Sheriff; he levied it on the goods already seized under the attachment, and on the eighth of that month sold the half interest of Rosanna to Crowther, for five hundred dollars. From the seizure under the attachment to the sale the business of the concern was stopped. On the tenth of the same month, Nightingale began the present suit for damages. On the nineteenth of that month, McCombe began suit against Crowther, averring in substance that Crowther having purchased the interest of Rosanna Gilbert, which really was nothing, claimed the right to interfere with McCombe's possession of the goods, and threatened to remove and sell them; that if the sale to him, McCombe, was a fraud and void, then the goods should be applied to the payment of the partnership debts of the old firm of Gilbert & McCombe before they could go to the individual debts of Rosanna. The complaint prayed that an account be taken of the partnership; that a receiver be appointed, etc.; that the sale from Rosanna to McCombe be decreed valid, or if held fraudulent, then that the partnership effects be first applied to firm debts, etc.; and that Crowther be enjoined from interfering with the goods. The injunction was granted upon the usual bond. Whether the receiver was appointed does not appear. McCombe being thus in actual possession of the goods through this suit, or at least of a part of them, as respondent contends, sold a portion to one Metz, who passed them over to Scott & Co., for whom he had probably bought them. Metz gave McCombe two notes for the purchase money--one of three hundred dollars, the other of five hundred dollars. These notes were to the order of McCombe, but were paid to Nightingale, he endorsing the amount, October 19th, 1855, on his note against the firm of Gilbert & McCombe before mentioned. This sale by McCombe to Metz, and payment of the notes to Nightingale, and the proceedings in the suit of McCombe v. Crowther, constitute the evidence of recaption of the goods. Nightingale, though about the store before and after the Sheriff's sale, does not appear to have taken any part in the management of the property after it was attached. The store was closed up about twenty days.

The defendants justified the seizure and conversion under an execution on a judgment in favor of defendant Crowther against Rosanna Gilbert; Scannell acting as Sheriff in the matter of the levy, and seizing and selling Rosanna's interest only, The main questions litigated at the trial were the title of Rosanna and the damages.

It was insisted, on the part of the plaintiff, that Rosanna and McCombe were original partners, and owned the property jointly, which was not disputed by the defendants in evidence; and that before the levy by defendant Crowther, Rosanna sold out to McCombe.

Admitting that the forms of sale had been gone through with, the defendants...

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