Garoutte v. Williamson

Citations

• 108 Cal. 135
• 41 P. 35
• 1895 Cal. LEXIS 834

Syllabus

<p>New Trial—Conditional Order Granting Motion—Effect of Refusal to Comply.—Where a motion for a new trial made by the defendants is granted on condition that they pay to the plaintiff within a time named his costs of suit, and the defendants refused to comply with the condition imposed, the motion must be regarded as having been denied.</p> <p>Trover—Conversion of Wheat—Indorsement of Warehouse Receipt— Pledge—Presumption—Burden of Proof.—In an action of trover to recover damages for the conversion of wheat, the warehouse receipt for which had been indorsed and delivered to a bank, the plaintiff’s ownership of the wheat being proved, it is to be presumed that the plaintiff had a right to its present possession at the time of the conversion, and the burden of proof is upon the defendants to show that the indorsement made upon the back of the warehouse receipt was made by authority, and that on the security of it money was advanced or loaned by the bank which had not been repaid, and that there was an existing indebtedness secured by a pledge of the wheat to the bank at the time of its conversion by the defendants, and, in the absence of such proof, a judgment in favor of the plaintiff cannot be reversed upon the ground that there was no evidence to show that the indebtedness to the bank had been paid at the time of the conversion.</p> <p>Id.—Effect of Warehouse Receipt—Negotiable Paper.—A warehouse receipt is negotiable paper, and under the statute in relation to warehouse receipts, the property represented thereby is transferable by the indorsement of the party to whose order it was issued.</p> <p>Appeal—Review oe Instructions—Exceptions Taken too Late.—Errors in the giving or refusing of instructions are errors in law occurring at ■ the trial, which must be excepted to at the time the errors occurred, or they cannot be reviewed upon appeal; and, where the bill of exceptions does not show any attempt to take exception to the action of the court in regard to the ins