Cassin v. Marshall
Cassin v. Marshall
Opinion of the Court
Cope, J. concurring.
We have attentively examined this ease, and find no error in the record, except as hereinafter explained. It is not necessary to examine the various points in detail, as no new principle would be settled thereby. The case does not come within the principle of the case of Taylor v. Robinson (14 Cal. 396). It does not rest with the defendant to inquire whether Cassin properly or improperly used the notes of Virgo owned by Miss Carroll. If she is satisfied with the use made by Cassin of her property, it does not rest with the defendant to inquire into the consideration of the contract with Virgo founded on these notes.
2. There is no good objection to the charge of the Court as to the measure of damages. The latter member of the charge is to be taken in connection with the first portion which it qualifies, and both taken together give the true standard of damages.
3. There was no error in rejecting the testimony as to the auction sale.
4. The judgment is erroneous in giving interest at ten per cent, per month on the value of the goods. This is, perhaps, a clerical error.
The judgment will be modified accordingly at the cost of the appellant.
The judgment so modified is affirmed.
On petition for rehearing, the opinion of the Court was delivered per the same Justices.
Rehearing denied. When we modify the judgment below for an apparent error, which the counsel for appellant might have corrected below by specific motion for that purpose, we think it not equitable to tax the costs to the respondent. Our practice has' been heretofore as in this instance.
Reference
- Full Case Name
- CASSIN v. MARSHALL
- Cited By
- 7 cases
- Status
- Published
- Syllabus
- V., about to fail, sells his saloon, stock and fixtures to C.; and, in payment, C. surrenders to V. two of his notes—the property of S., who had transferred them to C. for him “to get the money for her,” S.—and also assumed certain debts due by V. to his creditors. C. advertises the property for sale at public auction; and, just as the sale is to take place, defendant, as Sheriff, attaches the property in the hands of C., and in due time sells it: Held, in suit by C. against defendant for damages, that defendant cannot inquire whether C. properly or improperly used the notes of Y. owned by S.; that if S. does not complain of the use made of her notes, defendant cannot inquire into the consideration of the contract with V. founded on the notes. Held, further, that tills case does not come within the principle of Taylor v. Robinson (14 Cal. 396). Where, in such case, the Court charged the jury : “In estimating the value of the property, you will take as the basis of your verdict the cash value of the articles in the market at the time they were taken out of the possession of plaintiff by defendant. What amount of money will it take in the market to replace the articles seized by the Sheriff ? That sum will be the measure of damages : ” Held, that the latter part of the'charge must be taken in connection with the first portion, and that both together give the true standard of damages. Held, further, in this case, that it was not competent for defendant to show, as a measure of damages, that the property, when sold by the Sheriff, “ brought full and fair auction prices; ” or to show what the property sold for at the Sheriff’s sale; or that he was instructed by the attaching creditor to employ a competent auctioneer to make the sale, and that he obeyed such instruction. The judgment, in this case, being entered for the value of the goods as found by the jury, with ten per cent, per month interest thereon: Held, to be erroneous in giving interest at a greater rate than ten per cent, per annum. Held, further, that the judgment will be modified as to the interest, and then be permitted to stand, at appellant’s cost, on the principle, that where the Supreme Court modifies the judgment below for an apparent error, which appellant might have had corrected below, on motion, respondent will not he taxed with costs.