Sheppard v. Newhall

• Decision Date: 30 January 1893
• Docket Number: 41.
• Citation: 54 F. 306
• Parties: SHEPPARD v. NEWHALL et al.
• Court: U.S. Court of Appeals — Ninth Circuit

54 F. 306

SHEPPARD v. NEWHALL et al.

No. 41.

United States Court of Appeals, Ninth Circuit.

January 30, 1893

Statement by ROSS, District Judge:

This is an action brought to recover the possession of 12 cases of merchandise, consisting of woolen goods, etc., or their value, manufactured in and shipped from England by the plaintiff in error, who was also plaintiff in the court below, on an order given by Robert Gordon, a tailor doing business in the city of San Francisco, Cal., under the name of Gordon Bros. The goods were shipped in three lots,-- six cases, numbered, respectively, 99 to 104, both inclusive covered by one ocean bill of lading; two cases, numbered 105 and 106, respectively, covered by another ocean bill of lading; and four cases, numbered, respectively, 107 to 110 both inclusive, covered by a third ocean bill of lading. The goods were shipped by way of New York, and they were, by the bill of lading, made deliverable to E. Hawley, or assigns. Hawley was a railroad agent in New York, who attended to the transshipment of goods at that point. He received the goods in question from the ship at New York, and shipped them by rail to San Francisco, and, without indorsing the bills of lading, transmitted them to Gordon, at San Francisco together with the annexed invoice of the goods, and the inland transportation entry and railroad receipt. On receipt of the bills of lading and accompanying papers, Gordon indorsed and delivered them to the defendants as security for certain moneys advanced to him at the time on the strength of such security, and also as security for other and larger advances that defendants in error had previously made to him and which had not been repaid. All of the goods arrived in San Francisco, and those contained in cases 99 to 106 inclusive, were, prior to October 13, 1890, entered in the customhouse at San Francisco, and deposited in a bonded warehouse by the defendants in error, in their name, to await the payment of duties thereon. On October 13, 1890, Gordon became insolvent. On October 18, 1890, and before the cases numbered, respectively, 107 to 110, inclusive, had arrived in San Francisco, the plaintiff in error gave to the railroad company having the goods in transit notice of his claim and right of stoppage in transitu. On the arrival of these four cases in San Francisco, which was prior to October 30, 1890, the defendants in error paid the duty on them, and took them into their possession. On October 30, 1890, plaintiff in error also served on defendants in error a notice of his claim of right to stop the goods in transit. On November 8th following, plaintiff tendered to the defendants in error, in lawful money of the United States, $3,536.47, which he then supposed was the amount with interest, that they had advanced to Gordon, and paid out on the goods in question, at the same time offering to pay them the exact amount, with interest, that they had so paid, if the amount tendered was not correct; both of which offers were by the defendants in error refused; and they also refused to state the amounts they had advanced and paid out on the goods, and also refused the demand thereupon made them by the plaintiff in error for the possession of the property. The plaintiff then commenced the present suit to recover from the defendants possession of all of the goods, or their value, basing his right to do so solely upon the allegation that on November 8, 1890, he was the owner of the goods. The suit having resulted in a judgment adverse to him in the court below, he brought the case here by writ of error.

The first assignment of error grows out of a motion made by the plaintiff in advance of the trial for an order on the defendants to give the plaintiff an inspection and copies of certain accounts and papers, which in its scope went beyond the matters bearing upon the issues in the case. The application was made pursuant to the provisions of section 1000 of the Code of Civil Procedure of the state of California, which reads as follows: 'Any court in which an action is pending, or a judge thereof, may, upon notice, order either party to give to the other, within a specified time, an inspection and copy, or permission to take a copy, of entries of accounts in any book, or of any document or paper, in his possession or under his control, containing evidence relating to the merits of the action or the defense therein. If compliance with the order be refused, the court may exclude the entries of accounts of the book or the document or paper from being given in evidence, or, if wanted as evidence by the party applying, may direct the jury to presume them to be such as he alleges them to be; and the court may also punish the party refusing for a contempt. This section is not to be construed to prevent a party from compelling another to produce books, papers, or documents when he is examined as a witness.'

The court below granted the motion is so far as to allow the plaintiff an inspection and copies of (1) the original bills of lading covering the 12 cases of goods described in the complaint; (2) all accounts relating to moneys advanced upon the hypothecation of the 12 cases of goods; the court at the same time announcing that, should it appear at any time during the trial of the cause that the defendants were in possession of any books or papers material to the cause of the plaintiff, defendants would be required to produce them, and, if a production of such books or papers should make it proper to grant the plaintiff a postponement of the trial, such postponement would be ordered. In all other respects the motion was denied, to which ruling the plaintiff excepted. At the trial the defendants offered in evidence the three ocean bills of lading, with the accompanying papers, consisting of the invoice, inland transportation entry, and letter from Hawley, the consignee named in the bills of lading. To each of the bills of lading the plaintiff objected, on the ground that neither of them was indorsed by the consignee therein named. The court overruled the objection, and admitted the bills of lading in evidence, to which the plaintiff excepted. The ruling of the court in this particular is the basis of the 2d, 3d, 4th and 5th assignments of error.

The witness E. W. Newhall, having testified, among other things, that the defendants, from and including August 20, to October 3, 1890, advanced to Gordon $14,500 on the security of different goods and bills of lading, was asked by counsel for the plaintiff, 'What became of the goods pledged to you for advances up to October 3d, amounting to $14,500? ' To this question counsel for defendants objected, on the ground that it was irrelevant, immaterial, and incompetent. The court sustained the objections, and the plaintiff reserved an exception. The witness was also asked by counsel for plaintiff, 'On the 8th day of November, 1890, how much money was owing to you on these bills of lading covering the cases,-- the subject-matter of this action? ' Like objections of the defendants were sustained by the court, and the plaintiff excepted. These rulings are assigned for error in the sixth assignment.

Counsel for the plaintiff also moved the court to order the defendants to produce for his inspection their firm books showing all transactions had with Robert Gordon, and the amounts realized from sales of pledged property, and the dates of the various receipts of money produced by such sales, for the purpose of ascertaining whether or not the advances theretofore made by the defendants to Robert Gordon, doing business as Gordon Bros., had not been repaid on or before the 8th day of November, 1890. This motion was denied by the court, and the plaintiff reserved an exception, and assigns the ruling for error in the eighth...