Lubert v. Chauviteau

Citations

• 3 Cal. 458

Syllabus

<p>A plaintiff has a right to waive a tort, as against factors, and to bring his action to compel them to account, and for the net proceeds arising from the sales.</p> <p>The plaintiff may show the manner in which defendants became possessed of the goods, and, though the proof should show that they became possessed of them wrongfully, it will be sufficient to maintain an action against them, as consignees or factors.</p> <p>The distinction in the form of actions ex delicto and ex contractu was abolished by statute, but the general principles which govern such actions, are retained.</p> <p>If the plaintiff waives the tort, and sues defendants as factors, they must be considered as acting under his authority, and plaintiff can only recover the net proceeds of sales effected by them, after deducting necessary charges and commissions.</p> <p>It is error to admit evidence of the value of the goods sold in such action, where no charge is made of fraud, non-performance, or negligence. The strict measure of damages in such case, is the net proceeds of sale.</p> <p>It was error to reject the books of the defendants, offered to prove the account of the sales.</p> <p>When the defendants were sued as factors, it was not necessary to set forth in their answer, their claim for disbursements, commissions, &c., by way of set-off.</p> <p>And in such action it was error for the court to charge the jury, that it was for them exclusively to say what amount the plaintiff was entitled to recover, and that defendants were liable for the value of the goods at the time of demand made.</p>