Fitch v. Brockmon , 3 Cal. 348 ( 1853 )

Heydenfeldt, Justice,

delivered the opinion of the court. Murray, Chief Justice, concurred.

There are many very palpable errors pointed out in the record. The various questions asked by the plaintiff, which might have produced answers showing acts of ownership on the part of the plaintiff, and thereby tending to prove her possession of the property, were all proper, and should not have been excluded.

The 8th, 10th, 11th, and 12th instructions, which were asked by the plaintiff and refused, ought to have been given.

The true construction of the contract between Fitch and Carson gives to the latter no present interest in the live stock, hut only the right to acquire a determinate interest, after the performance of all the stipulations on his part, and these could not be completed until the expiration of five years from the execution of the contract.

Furthermore, the undertaking on the part of Carson was strictly personal, the result of the confidence which Fitch had in his integrity, skill, and capacity. It entered into the spirit and meaning of the contract, that he, Carson, should do the duty required, and that no other should be substituted for him.

It is, however, too clear for further argument, upon a proper view of the whole case as presented by the record, that Lindsey Carson, the assignee of Moses Carson, had no right whatever in the cattle which could be made the subject of levy and sale.

The court therefore erred in refusing the instructions mentioned, for which, and the error of improperly excluding the evidence referred to,

The judgment is reversed, and the cause remanded.