Persse et al. vs. Cole, 1 Cal. 369

By the Court, Hastings, Ch. J. The respondents, residents of New York, on the 10th day of December, 1849, sold to one Augustus Belknap twenty-six boxes of paper for the sum of $1498,63 payable by promissory note at six months. The boxes were shipped by respondents on the ship Washington, for San Francisco, of which the defendant Cole was master, to be delivered at San Francisco to the order of the shippers. Bel-knap having paid most of the freight of the Washington, the defendant delivered the boxes to him.

The agent of the plaintiffs, to whose order the goods were ordered to be delivered, holding the bill of lading, subsequently tendered to defendant the freight and demanded the delivery of the boxes. This action was brought for the value of the goods, and a judgment was recovered for the full value thereof at the port of delivery; from which an appeal is prosecuted to this court.

Whether the court erred in allowing testimony to contradict the witness Belknap, and in finally ruling out the testimony of Belknap, is not material, inasmuch as we do not think the result would be changed by the admission of Belknap’s testimony. The facts appear to be (with or without Belknap’s testimony) that the plaintiffs were not willing at the time of the sale to Belknap to give the credit without security, and therefore shipped the boxes to be delivered to their agent.

The goods were insured for Belknap, and shipped on his account and for his benefit, and he was considered both by the plaintiffs and their agent as the owner, as is shown from the purchase, the execution of the note, the receipt of plaintiffs to Belknap, and the admissions and conduct of the agent after the ship’s arrival at San Francisco ; but it is equally clear that plaintiffs did not intend to part with possession until the note was paid. It was a sale then to Belknap, subject to a lien on the goods for the purchase price.

It is conceded that if Belknap was the owner, and plaintiffs had no property in the goods, the action could not be sustained; but it is contended that the plaintiffs were the owners In possession, and that the master is liable on his bill of lading for the value of the goods in the market of San Francisco. We think the defendant was liable in this action, not for the value of the goods, but for the value of plaintiffs5 property in them. Being the property of Belknap, subject to a lien to secure the purchase price of $1498,63, the defendant was responsible to that amount.

The judgment should, therefore, be for that sum, with interest at 7 per cent, per annum from the time when the note matured. The judgment of the superior court is modified, and reduced to the sum of $1498,63, with interest at 7 per cent, per annum from the maturity of the note. Ordered accordingly.