Action of claim and delivery to recover the possession of certain trays and sweat boxes.
Upon the foregoing issues the evidence in behalf of the respective parties was decidedly conflicting, and the verdict of the jury thereon cannot be disturbed.
For the purpose of sustaining the defendant’s claim that the sale by Vieu to the plaintiffs was with the intent to defraud his creditors, evidence was introduced tending to show that the' sale was made in consequence of an effort by Fon Kee to collect the amount of his claim; and a telegram, dated April 5, 1893, and directed to Vieu at Dixon, which Mr. Spencer, a witness on behalf of the defendant, testified that he wrote and sent for Fon Kee, was offered in evidence. This telegram is as follows:
“April 5, 1893
“N. Vieu, Dixon, Cal: Your note is past due. You no pay me, I commence suit. Fon Kee.”
The plaintiffs objected to the introduction of this telegram, on the ground that it was irrelevant, immaterial, incompetent, and could in no way bind them. Their objection was overruled and the telegram admitted in evidence, and this ruling is now assigned as error. It had already been shown that Vieu made the bill of sale to the plaintiffs on the sixth day of April; that Ettlingér, one of the plaintiffs, who resided at San Francisco, met Vieu at the ranch in Fresno on that day by previous
In the specifications of errors of law the plaintiffs assign the admission of this telegram in evidence “for the reasons assigned at the time, and for the reason it is not shown that plaintiffs had any knowledge whatever of any such action, or that said telegram was ever received.by Napoleon Vieu.” These latter objections were not made at the time it was offered, and, although the defendant stated to the court that he intended to show that the telegram had been received by Vieu, it was not necessary that any direct evidence of its receipt should be given. The rule has long been settled and is made statutory in this state (Code Civ. Proc., sec. 1963, subd. 24), “that a letter duly directed and mailed was received in the regular course of the mail.” The same rule has been extended to telegrams. (Wharton on Evidence, sec. 1329; Greenleaf on Evidence, sec. 40; Gray on Telegraphs, sec. 136; Commonwealth v. Jeffries, 7 Allen, 548; 83 Am. Dec. 712; Oregon S. S. Co. v. Otis,
The testimony given by Ah Loo; of statements made by Vieu of his object in moving the trays, was properly received. Burton had testified that Vieu was present during the moving of the trays; and Pourtett had testified that Vieu had directed him to move them, or help to move them, and these statements of Vieu were made before the sale had become complete by delivery, and while the trays were being moved. They were, therefore, a part of the transaction, and were admissible for the purpose of throwing light upon its character, and enabling the jury to determine whether the sale was bona fide, or with the express intent to defraud his creditors.
The testimony of the witness Schleyer that she had made a statement at Vieu’s request for Fon Kee, even if immaterial, could not have prejudiced the plaintiffs.
The judgment and order are affirmed.