Walling v. Miller & Co.

Citations

• 15 Cal. 38

Syllabus

<p>Plaintiff delivered to defendants gold dust, to be by them forwarded to San Francisco, to be there coined, and returned. The dust belonged to five persons, partners in mining, of whom plaintiff and C. were two. While the dust was in the hands of defendants, C. sold to plaintiff, for a valuable consideration, his interest in it, and gave a receipt evidencing the sale. Defendants, after this, received coin made of the dust, and a creditor of C. attached the coin, by garnisheeing defendants. Defendants had no notice of the sale to plaintiff until the day after the attachment, when plaintiff demanded C.’s share of the coin. Held, that plaintiff was entitled to the coin; that the dust in defendants’ hands was in the constructive possession of all the five owners, C. having no exclusive interest in any part until it was converted into coin, and divided among the owners; that C.’s right in the dust was a chose in action, which he could assign by order in favor of the purchaser or assignee, and after such order, neither C. nor his creditors could claim any right to the money; that the statute of frauds has no application to a case like this.</p> <p>A garnishment does not give the creditor precedence over assignees of the fund, when the assignment is prior to the service of the garnishment.</p>