Thompson v. Paige & O'Neal

Citations

• 16 Cal. 77
• 1860 Cal. LEXIS 167

Syllabus

<p>Plaintiff sues for damages in levying on fruit trees shipped by him to W., and landed to W.’s order on the wharf at Stockton, claiming that the trees were not paid for, and not subject to W.’s debts, for want of delivery, and asked, on the trial, this instruction: “ That a man who is insolvent for the want of means to pay his debts in this State, is in law insolvent, without reference to any property in another StateHeld, that the proposition is too broadly asserted, even if there were any proof on which it could rest—but in this .case there is no proof of the insolvency of W.</p> <p>Plaintiff also asked this instruction: “ That a delivery at the wharf is not sufficient, unless notice be previously given to the vendee of their arrival, and that sufficient time be allowed to enable him to receive and remove themHeld, that this proposition is not strictly correct; that if the trees bargained for were put out on the wharf, marked for W., with the intention of his taking them, and if this were done by his order, they would vest in him, especially if he was willing to consider this a good delivery; that there is in the testimony here, no predicate laid for the doctrine of stoppage in transitu, or that plaintiff claimed the right to stop the trees.</p> <p>Where a party asks an abstract proposition of law, by way of instruction to a jury, he takes the risk of its being correct in all its parts.</p> <p>As to new trial because of an incompetent juror, see facts.</p>