Lubert v. Chauviteau , 3 Cal. 458 ( 1853 )

The opinion of the court was delivered by

Wells, Justice,

Heydenfeldt, Justice, concurring.

The first assignment of error is, that the evidence does not support the contract as laid in the complaint, and therefore, that the court erred in refusing to order a nonsuit.

The plaintiff in the court below waived the tort (if any had been committed), and brought his action against the defendants as' factors, to account for goods sold by them, and to restore the amount of the net proceeds arising from the sale. This he had a right to do, according to well-established principles of the common law, and it was competent for him to introduce evidence showing the manner in which the defendants became possessed of " the goods ; and although the proof should establish the fact that the defendants became possessed of them wrongfully, it would still be sufficient to maintain an action against the defendants as consignees or factors for the net proceeds.

One of the objects sought by the reformation in the forms of pleading was to provide for cases like the present. The distinctions in the form of actions ex delicto and ex contractu are abolished, and one form of action only substituted, and the plaintiff here has brought his action in the form prescribed by the. code ; but the principles of law which govern the case remaining unchanged, he introduced testimony to maintain llis action as he would have done under the common law system of practice in an action of assumpsit, based upon a similar state of facts; and the court committed no error in refusing a nonsuit, either on the ground of variance or insufficiency of proof, to sustain the complaint.

But the plaintiff having elected to proceed against the defendants as factors, instead of tort feasors, he thereby ratified the act of his agents, Hugens Brothers, in transferring the merchandise and the bills of lading into the hands of the defendants,” and the defendants, who were commission merchants, as shown by the complaint, must be considered as acting as the authorized consignees and commission merchants of the plaintiff, and entitled to the rights and benefits arising from this relation. It follows, that the plaintiff could only recover from the defendants the net proceeds arising from the sale and disposition of the merchandise; after deducting the necessary charges and disbursements, and ‘ the court erred in admitting proof of the value of the goods at the time of the demand and refusal to deliver.

The defendants are not charged with non-performance ornegligence, nor with fraud in.the sale, and no cause is shown why they were not entitled to commissions; the strict measure of damages, therefore, was the net proceeds after deducting the necessary charges, disbursements, and commissions, and the court erred in refusing to admit in evidence the books of defendants’ firm to prove the account of the sale of the goods. It was not necessary, as is insisted upon,-for the defendants, who were recognized by the plaintiff as factors, and prosecuted as such, to set forth in their answer those charges, disbursements, and commissions, either as new matter, or by way of set-off, to a claim for the net proceeds of the sale. And the court erred in charging the jury that if was for them exclusively to say, what amount the plaintiff was entitled to recover, or that the defendants were liable for the value of the goods at the time of the demand and refusal. Therefore, in order that these errors maybe corrected, the judgment of the court below is set aside; and . a new trial ordered.

[This case Was reheard, by order of the court, and the above opinion re-affirmed, December 5th, 1853.]