CLARK v. RUSH, 19 Cal. 393

Cope, J. delivered the opinion of the Court Baldwin, J. concurring. This is an action to recover the price of certain cattle bid off by the defendant at a public sale. The terms of the sale were that the price should be paid in cash, or a note with sufficient sureties executed for the amount. Neither of these terms was complied. with, but the plaintiff claims that there was a waiver in that respect, and that the cattle were delivered to and accepted by the defendant. The question is, whether there was such a delivery and acceptance as were necessary to complete the sale.

The cattle were not removed from the premises of the plaintiff, but the evidence shows that they remained there at the request of the defendant, and were subject to his control. The plaintiff agreed to keep them until a particular time, and the persons in charge of them were directed to deliver them to the defendant when called for. This direction was not accompanied with any qualification as to payment, and the language and conduct of the parties were such as to justify the conclusion that the cattle were regarded as the property of the defendant.

They were exhibited at the sale, and he bought them with a full understanding of the character of the purchase, and afterwards sent for them without offering to comply with the original terms of the sale. In the meantime, however, they had died; and failing to obtain them, he refused to pay. The verdict was for the plaintiff, and according to our view of the evidence in the case, and of the law applicable to it, this verdict cannot be disturbed.

We do not understand that it was necessary to show that the cattle had been actually removed; it is sufficient that there were circumstances authorizing the inference of a change of ownership. It was for the jury to draw this inference, and it was competent for them to consider any and all acts of the parties tending to prove that the defendant had acquired and assumed control of the cattle as owner.

In connection with these acts, and in explanation of them, the declarations of the parties showing the nature of their agreement were admissible in evidence ; and whether or not too much importance was attached to these declarations by the jury, it is impossible for us to determine. We presume that the case was submitted to them under proper instructions from the Court, and there was undoubtedly some evidence sufficient in point of law to warrant the conclusion arrived at.

The direction by the plaintiff to deliver the cattle when called for, and the subsequent act of the defendant in sending for them, were circumstances from which a change of ownership might well be inferred. There was nothing equivocal in these circumstances, and their tendency as evidence was to show that the plaintiff, in taking charge of the cattle, acted simply as the agent of the defendant. The matter resolves itself into a mere inquiry as to the weight of evidence, and this inquiry we^do not propose to prosecute. Judgment affirmed.