Stringer v. Davis

<p>Appeal from the District Court, Fourth Judicial District, City and County of San Francisco.</p> <p>The complaint, in this case, alleged that plaintiff sold certain upholstery and furniture to Armstrong & Wimmer, for the purpose of furnishing, and with which was furnished, a house in San Francisco, alleged to be a hotel, and known as the “Willows;” that upon the delivery of the goods a chattel mortgage to secure the payment of the purchase money was executed in due form of law by Armstrong & Wimmer to plaintiff, and placed on record; that thereafter, and while said mortgage remained unsatisfied, the defendant, who was Sheriff of the City and County of San Francisco, seized and detained said goods from the possession of the plaintiff, to whom, before said seizure, they had been redelivered by Armstrong & Wimmer, for the purpose of subjecting them to the satisfaction of said mortgage debt; that said mortgage debt remained wholly unsatisfied, and that defendant refused to redeliver the goods to plaintiff upon demand duly made therefor, and prayed judgment for the recovery of these goods, or for their value. Plaintiff replevied the goods at the commencement of the action.</p> <p>The answer put in issue only the allegations of the complaint :</p> <p>First—That the-house known as the “Willows” was a hotel.</p> <p>Second—That said goods had been redelivered to plaintiff, as alleged; and,</p> <p>Third—That the goods were seized by defendant from the possession of _ plaintiff, but alleged that they were levied on while in the possession of Armstrong, and held by him as Sheriff", under and by virtue of a described writ of attachment, lawfully issued in an action against Armstrong, under which defendant justified his seizure—alleging that said mortgage was fraudulent and void as against the creditors of Armstrong, of whom the plaintiff in said attachment suit was one.</p> <p>The answer prayed judgment for a redeliverv of the replevied goods to defendant, or for their value.</p> <p>On the trial, which was before the Court with a jury, plaintiff' introduced some evidence tending to prove that the “Willows” house was a hotel; also, that before the seizure of the goods by defendant they had been redelivered to plaintiff by Armstrong & Wimmer. But on both points this evidence was somewhat vague, and on the second point not free from contradiction.</p> <p>In the course of the trial plaintiff offered to prove that Armstrong & Wimmer advertised the “Willows” house as a hotel, and therein solicited to it, as such, the patronage of the public, in two of the leading daily newspapers published in San Francisco. That this was done about the time of and after said sale of the demanded property to Armstrong & Wimmer.</p> <p>The evidence so offered was rejected by the Court, on defendant’s objection thereto that it was irrelevant and incompetent; to which ruling plaintiff duly excepted.</p> <p>At the close of plaintiff’s testimony a judgment of non-suit was granted on defendant’s motion, on the grounds:</p> <p>First—That the “Willows” house was not a hotel; and, second—that there was no proof that the goods were ever redelivered to plaintiff before the taking by defendant.</p> <p>Plaintiff moved for a new trial, which was denied; and thereupon appealed from the judgment, and from the order denying a new trial.</p>