Davis

I. The Court erred in point of law in the instruction given at the request of plaintiff, and excepted to by defendants—because, if Davis did not sell the wheat to Barney, still the indorsement and delivery of the warehouse receipt did invest Barney with the title to the property. (Vide secs. 1459, 2991, Civil Code, Cal.; 8 Cal. 609 .)

II. The indorsement and delivery of the warehouse receipt vested the title in Barney, and a hypothecation by Barney to an innocent pledgee would protect such pledgee from any action upon the part of Davis. ( Vide Horr v. Barker et al. 8 Cal. 609 ; Ghirardelli v. McDermott, 22 Cal. 539 ; Thompson v. To-land, 48 Cal. 99 ; Gibson v. Stevens, 8 How. U. S. Rep. 399 and 400; Conaud v. Atlantic Ins. Co. 1 Peters, 445 ; Story on Sales, 5th ed. secs. 310, 311; secs. 1142,1459, and 2991, Civil Code, Cal.)

Terry, McKinne <6 Terry, Budd & Son, and F. T. Baldwin, for Respondent.

I. A factor cannot pledge as security for his individual debt the goods of his principal intrusted to him for sale.

“ A power to sell for the benefit of his principal (says Mr. Chief Justice Field, in Wright v. Solomon, 16 Cal. 72 ) can in no way be stretched into a power to pledge…