SAMUEL PUTNAM v. JUDD LAMPHIER, 36 Cal. 151

By the Court, Rhodes, J. : The application of the rule that the finding will not be disturbed when there is a manifest conflict in the evidence, depends in no measure upon the question whether any of the witnesses are interested in the event of the suit. The credit to be given to their testimony, however attacked, must be determined in the Court below. In treating of conditional sales, Parsons, in his work on Contracts, Vol.

I, p. 449, says: “But where the right to receive payment before delivery is waived by the seller, and immediate possession is given to the purchaser, and yet by express agreement the title is to remain in the seller until the payment of the price upon a fixed day, such payment is strictly a condition precedent, and until performance the right of property is not vested in the purchaser.” (See cases cited in the note to p. 449; 2 Kent Com. 496.) This doctrine is sustained both by the weight of authority and by principle.

Perkins & Robinson claim that if the agreement between Putnam and Lamphier amounts to a conditional sale, they will hold the property against the claim of Putnam, on the ground that they are bona fide purchasers from Lamphier. It is a general rule, applicable to conditional as well as absolute sales, that a second vendee is not entitled to stand in any better situation than his vendor in regard to the title of personal property, other than negotiable instruments, and whatever comes under the general denomination of currency. (Wright v. Solomon, 19 Cal. 76.) In a few cases, among which are Smith v. Lynes, 5 N.

Y. 41; Haggerty v. Palmer, 6 Johns. Ch. 437; Keeler v. Field, 1 Paige, 315; Hussey v. Thornton, 4 Mass. 405, an exception to the rule is made in favor of a bona fide purchaser from the purchaser at a conditional sale. Whether this exception is either maintainable on principle or is consistent with the reasoning on which the decision in Wright v. Solomon proceeds, cannot be authoritatively answered in this case, because it is not found that Perkins & Robinson are bona fide purchasers—that is to say, that they purchased the property and paid the purchase money without notice of the claim of Putnam.

The point is made that the judgment is not authorized by the pleadings. This objection may be taken upon the judgment roll alone, whether there is a statement on motion for a new trial or not. It is sometimes included among the grounds of the motion, but without any necessity, as it derives no support from the statement, and its omission, in stating the grounds of the motion, raises no presumption that it is waived. Putnam, in the action against Lamphier, claims four mules, their harness, and a wagon.

Perkins & Robinson sued Putnam, and the Sheriff and his Deputy, for the recovery of the same property and a saddle; and Putnam, in his answer, alleges that he is “the owner of all the property set forth in said complaint, except such as was designated by said defendant Putnam at the time of the taking, and left in possession of one Lamphier or plaintiff, to wit: all of said property except three mules and their harness.” The allegation is loose, disjointed, and ambiguous. It is uncertain whether he claims three mules and their harness, or one mule and its harness, and the wagon and saddle.

If the first is the proper construction of the averment, it still remains uncertain which of the four mules described in the complaint he claims. The two actions having been consolidated, judgment was given for Putnam against Lamphier and Perkins & Robinson for the recovery of four mules and their harness, and the wagon. But as Putnam, giving him the benefit of the most favorable construction, claimed, as against Perkins & Robinson, only three mules and their harness, he was not entitled, as against them, to a judgment for the return or the recovery of any other property.

For this error the judgment must be reversed. The value of all the property having been found in one sum, and Putnam not having designated in his answer the property which he claims, a modification of the judgment cannot be ordered. Judgment reversed, and the cause remanded for a new trial, and the remittitur directed to issue forthwith.