Fitzgerald v. Gorham

Decided October 15, 1854

California Supreme Court · decided 1854-10-15

This was an action of trover, brought by the plaintiffs against the defendant, Sheriff of the County of San Francisco, for taking and carrying away, on or about the 20th of June, ‘1854, the goods in a certain store, No. 102 on Battery street, in the City of San Francisco, valued at $6,000. The material facts in the case were these: The goods ' originally belonged to Samuel J. Josephs.

Cited by 1 later decisions — most recently October 1864

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1854-10-15

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Mr. J. Heydeneeldt

¶1delivered the opinion of the Court.

Mr. Ch. J. Murray concurred.

¶2By the 15th section of the Statute of Frauds of this State, it is made conclusive evidence of fraud in the sale of goods, unless the sale is “accompanied by an immediate delivery, and be followed by an actual and continued change of possession .”

¶3In this case there was, at the most, a mere constructive *291change of possession, Josephs was continued in charge and control over the goods; and although the sale to the plaintiffs was in good faith, and Josephs was in like good faith their agent on clerk, jet the very case is presented upon which the statute intended to operate.

¶4The continued- change of possession must be “actual," and not constructive.

¶5Judgment affirmed.