Gray v. Eschen

Citations

• 125 Cal. 1
• 57 P. 664
• 1899 Cal. LEXIS 787

Syllabus

<p>Goods Sold and Delivered—Blasted Materials—Proof of Ownership—Lease—Title to Land Blasted.—In an action of assumpsit, for goods sold and delivered, which consisted of blasted materials, claimed by the .plaintiffs to have belonged to them, and to have been taken away by the defendants, when the ownership thereof by plaintiffs was denied, proof thereof devolved upon them; and where they introduced a lease to themselves of premises from which they claimed the materials were taken, the right of the plaintiffs to recover depends upon the ownership by their lessor of the land from which the materials were blasted, and they cannot claim that such ownership was not in issue.</p> <p>Id.—Instructions—Ownership of Land—Blasting from Street.—Instructions in such action, based upon testimony that the blasting was done by plaintiffs’ lessor within the lines of a public street, to the effect that if the jury'find that plaintiffs’ lessor was not the owner of the land from which the materials were blasted, and had no interest therein, and that plaintiffs’ only right to the materials was derived from him, their verdict should be for the defendants, and that, if any of the materials were blasted out of the street without the consent of the city authorities, their verdict should be for the defendants as to all materials which came from the street, are correctly given.</p> <p>Id.—Title of Defendants to “Waste” Materials.—Where it appeared that defendants had bought from plaintiffs’ lessor, and paid for all “waste” materials blasted by him on the premises subsequently leased by him to plaintiffs, the title of the defendants to such “waste” materials is superior to that of the plaintiffs; and plaintiffs only took from their lessor what had not before been sold to the defendants.</p> <p>Exceptions to Instbtjctions—Presumption upon Appeal.—A general exception to the instructions without specifying any particular instruction, or part thereof, is insufficient; and where the court stated ge