Appeal from the Fourth District.

Action to recover of Wakelee §1,360.34, money had and received by him to plaintiff’s use.

The complaint avers, that on the sixth of November, 1855, the defendant received from the U. S. Branch Mint, at San Francisco, the sum of §1,360.34, the property of plaintiff, and received as such by defendant to plaintiff’s use, and to be paid on request; that afterwards, on the fifteenth of March, 1860, plaintiff demanded the money of defendant, who refused to pay.

There are two separate defenses set up by the answer. The first is a denial that on the sixth day of November, 1855, or at any other time, the defendant had or received from the said Branch Mint, or any of the officers thereof, the sum of §1,360.34, or any part thereof, as the property of the plaintiff, or to or for his use, or to be paid by the defendant to the plaintiff on request, as alleged in the complaint.

As a second defense, the defendant avers that on the sixth of November, 1855, he was the agent at San Francisco of Wines & Co., an Express company, but was not a member of the firm; that as such agent he received from Jesse Rhodes, of Sacramento, a bag of gold dust, with instructions to cause it to be coined at the Mint, to receive the proceeds from the Mint, and hold the same subject to Rhodes’ order; that in pursuance of such instructions, and as such agent, he caused the dust to be coined at the Mint, received the proceeds, and afterwards, in March, 1857, as such agent, and at the request and order of Rhodes, paid the money— $1,360.34—to him, it being the same money mentioned in the complaint ; and he denies that he received the money as the property of the plaintiff, or to or for his use, or to be paid to him upon his request; and he avers that it was part of the regular business of Wines & Co., as factors, to receive from Rhodes gold dust to be coined, and to receive and pay over to him the proceeds, and that the defendant, when he received and paid over this money, was the general agent of Wines & Co., at San Francisco, and as such agent had authority, for and in behalf of Wines & Co., to receive and pay over the money to Rhodes.

On the trial, plaintiff proved that Wakelee was the agent of Wines & Co., at San Francisco, and advertised their express in the Herald; that on the seventeenth of September and the fifteenth of October, 1855, the advertisement of Wines & Co.’s Express between San Francisco and various other places in the interior and on the coast stated that their express would connect at Sacramento with Rhodes & Whitney’s Express between Sacramento and the northern mines; and that the advertisements of Wines & Co.’s Express of the thirtieth, of October, sixth, thirteenth and twenty-ninth of November, 1855, did not state that there was any connection between the two companies.

' The plaintiff then gave in evidence a memorandum (Exhibit A) which is a copy of the assayer’s report mentioned below, filled out and certified:

The plaintiff proved by Edward Cahill, a clerk in the Mint, that this paper was signed by him, and that he had authority to sign it, and that he delivered it to the clerk of the Superintendent of the Mint for him to deliver to the depositor.

Cahill testified that each deposit is delivered to the Receiving Clerk, who weighs it, gives a receipt for it, makes an entry of it in the deposit book, and sends it, with the number, to the Melter and Refiner. The latter, after melting, returns it to the Receiving Clerk, who weighs it and passes it to the Assayer, delivering to him an Assayer’s report, filled up with the number and weight of the deposit before melting. The Assayer makes out the weight and fineness and inserts them in the report, and delivers it to the Computing Clerk, who makes the calculations and inserts them in the report, and after copying it in his abstract delivers it to the Superintendent’s Clerk.

He testified that he was the Computing Clerk at the time this deposit was made, that this paper (Exhibit A) was a copy of the entry from his book, and that he knew nothing about the name of the depositor, except from the Assayer’s report which was furnished to him; that the name inserted in the receipt given by the Receiving Clerk is continued in subsequent entries, and the same number used; that the receipt mentioned in Exhibit A is that given by the Receiving Clerk and which has to be returned, and that Exhibit A is a memorandum, not a receipt, and that the money could not be drawn upon it.

The plaintiff then read the deposition of John Anderson, who testified to this effect :

That he knew the firm of Rhodes & Whitney; in November, 1855, they were engaged in banking and express business in Shasta, Weaverville and other points; that he was their agent at Weaver-ville; that about the twenty-eighth or twenty-ninth of October, 1855, as agent for Rhodes & Whitney, he received from the plaintiff a sealed package of gold dust, containing about $1,306.25, consigned to the U. S. Branch Mint for coinage, for account of Patrick Tuite ; thinks he gave the plaintiff a receipt for it; it was sent to Rhodes & Whitney at Shasta, and on the thirtieth of October sent by them to San Francisco for coinage. No special instructions appear on the way-bill book of Rhodes & Whitney. At that time Wines & Co., at Sacramento and San Francisco, received the packages of Rhodes & Whitney’s Express, and disposed of them according to instructions; thinks he received from Wines & Co. a certificate of assay from the Mint, of dust deposited for account of Patrick Tuite, and that it was delivered to him; and that he knew the defendant as the acting agent of Wines & Co.’s Express at San Francisco.

The plaintiff then examined Daniel Grotty, who testified that he saw the plaintiff receive from Rhodes & Whitney’s Express messenger the paper, “ Exhibit A,” and deliver to him the first paper he, the plaintiff, got for the amount of dust.

Upon this evidence the plaintiff rested.'

The defendant moved for a nonsuit on two grounds: 1st, that there was no proof that the defendant ever received the money from the Mint, or had it in his hands; 2d, that there was no privity of contract shown between the plaintiff and defendant; that on the contrary, as shown by the plaintiff’s evidence, the defendant could only he liable for the money to Wines & Co., or at most to Rhodes & Whitney. The motion was overruled and the defendant excepted.

The defendant then called Lafayette Hammond, who testified that he had been Cashier of the Mint since 1853, He produced his 66 book of gold warrants paid.” In it was the following entry, which the defendant gave in evidence:

He testified that this entry was an original receipt. That anothei original receipt was given, which was sent on to the Department f s Washington ; that the duplicate is always required to he sentón i:3 a voucher for payment; that he paid- the money, he thinks, to one Raphael, who was the clerk and representative of Wines & Co. in making deposits and drawing money at the Mint, and took the receipt from him ; that at the time of the payment Raphael delivered to him the original receipt given when he made the deposit; that that receipt is in the Department at Washington ; that it is always required to be sent on ; that it must always be delivered up befor^ payment; that the receipt given to the depositor is made out from the weight book, which shows the name of the depositor, the description of the bullion, the weight before and after melting, and the number and date of the deposit; and that the receipt given the depositor contains all these items, except the weight after melting, which is inserted in the weight book after the receipt is given.

This witness further testified that deposits made by express companies state the name of the person for whom made, though now, under instructions from Washington, express companies are not allowed to use the names of other persons, and deposits are made by them in their own names.

The defendant then called John C. Mitchell, who was Receiving Clerk of the Mint from July, 1854, to April, 1856, and who stated that it was his duty to receive bullion, enter the name of each depositor, and the weight of the deposit, and deliver him a receipt. He produced his official book showing the deposits, and testified that it was the book of original entries, that the entries were made at their dates, and that the receipts given by him were made after the entries hi this book, and corresponded in numbers, weights, and names of depositors.

In that book is the following entry made by the Receiving Clerk:

Defendant offered this entry -in evidence. Ruled out on the objection of plaintiff, defendant excepting.

The defendant then called Cornelius S. Whitney, who testified that he was a member of the firm of Rhodes & Whitney, in the express and banking business; that they had an office at Weaver-ville ; that they forwarded their express matter to Wines & Co., at Sacramento, who forwarded it to San Francisco and delivered it according to instructions, which were usually endorsed on the waybill ; that they paid Wines & Co. by the month; that they paid Wakelee nothing; that the firm of Rhodes & Whitney was dissolved about the middle of December, 1855, and Rhodes then continued to carry on the business in his own name, and had the settlement of the business of the firm; that Rhodes died about June, 1857; that Rhodes was in San Francisco about March, 1857, on his way East, and he, the witness, saw Wakelee hand Rhodes a bag of coin, which from its size might contain from $1,000 to $1,500, and take Rhodes’ receipt; that Rhodes never returned to California; that the firm of Wines & Co. was composed of G. H. Wines and-Whitney, both of New York, and Wakelee was their agent in San Francisco.

The witness proved the signature of Rhodes to a receipt in these words: “ Received, San Francisco, March 17th, 1857, from Gr. H. Wines & Co., one bag coin containing thirteen hundred and sixty twenty-five one-hundredths dollars, marked Rhodes & Whitney, Weaverville, for acc’t of Patrick Tuite.

“ $1360 25-100. (Signed.) Jesse Rhodes.”

Defendant then offered this receipt in evidence. The plaintiff objected to its admission on the ground that "it was incompetent evidence.” Objection sustained, and the defendant excepted.

The defendant then read the deposition of Wm. R. Garrison, proving that Wakelee was the agent only of Wines & Co., and not a partner, and that the firm was composed of G. H. Wines and-Whitney, of New York, and no others.

The foregoing sets forth substantially all the evidence on both sides.

The defendant asked the Court to instruct the jury that there was no privity of contract between the plaintiff and defendant, and that the plaintiff could not recover in the action.

The Court refused the instruction and the defendant excepted.

The jury then found a verdict for the plaintiff for the amount claimed in the complaint.

The defendant moved for a new trial on the following grounds: 1st. Insufficiency of the evidence to justify the verdict. 2d. That the verdict is against law. 3d. Errors in law occurring at the trial. New trial denied, and defendant appeals.