Garoutte

This is an action to recover damages for the conversion of two thousand one hundred and sixty-eight sacks of wheat. The complaint is in the usual form, alleging, the conversion by defendants on the thirteenth day of October, 1892, and the answer denies all of its material averments.

The case was tried before a jury, and the verdict and judgment were in favor of the plaintiff. Defendants moved for a new trial, and their motion was granted on condition that they pay to the plaintiff, within a time named, his costs of suit, amounting to two hundred and twenty-six dollars. They refused to comply with the condition imposed, and, as a consequence, their motion “ must be regarded as having been denied.” (Garoutte v. Haley, 104 Cal. 497 .) In due time they appealed from the judgment and the order.

The facts proved on behalf of the plaintiff were in substance as follows: The wheat in controversy was a portion of thirteen thousand four hundred and sixty sacks of wheat which, during the year 1892, was raised on a farm in Yolo county by a firm known as Hays & Garoutte, of which the plaintiff was a member. All of the wheat was taken to and stored in the Phoenix Warehouse at Knight’s Landing,…

I concur in the judgment.

A petition for a hearing in Bank having been filed, the same was denied, and from the order refusing the hearing in Bank the following dissenting opinions were filed on the 14th of August, 1895:

I dissent from the order refusing a rehearing, because I am convinced that under the instructions the verdict is not warranted by the evidence. I agree with the chief justice as to the law which ought to have governed at the trial.

I dissent from the order denying a rehearing of this cause. Hot because I think the plaintiff failed to prove facts entitling him to a judgment, but because, in my opinion, the cause was tried in the superior court, and has been decided here, upon an erroneous view of the law.

The issues of fact were submitted to the jury under instructions to the effect that if the bank held the warehouse receipt, properly indorsed by plaintiff’s assignors, as security for a loan at the time defendants purchased and took possession of the wheat, the plaintiff could not maintain the action.

It is conceded, in the opinion of the court, that this theory was correct, but the judgment is affirmed on the *143 ground that the defendants failed to prove the existence of the bailment at the date of the conversion. In my opinion the existence of such a bailment at the date of the conversion was no defense to an action to recover compensation for an injury to the reversionary interest of the pledgors, commenced after payment of the debt and return of the pledge, and, therefore, I am satisfied that the actual result of the litigation is just. But I cannot assent to the grounds upon which the decision of…