dissenting.—I dissent, and adhere to the conclusion reached in Department.
Rehearing denied.
The following is the opinion of Department Two, rendered on the 7th of November, 1895, referred to in the dissenting opinion of Mr. Justice McFarland.
Britt, C.Plaintiffs brought this action against defendant, who is the sheriff of Fresno county, to recover possession of a quantity of trays and sweat-boxes used in the curing of raisins. It is alleged in the complaint that plaintiffs own the property, and that defendant took the same from their possession. Defendant, by his answer, denied plaintiff's ownership and possession; alleged that he seized the goods under a writ of execution upon a judgment recovered by one Fon Kee against one Vieu; that Vieu was the owner and in possession thereof at the time of such seizure; that plaintiffs took the goods from him, defendant, at the commencement of this action; and prayed a return of the same. The plaintiffs claim under a bill of sale made to them of the property by said Vieu on April 6, 1893; the levy by defendant was in November, 1893. The defense is that the sale was void because of constructive fraud in that it was not accompanied by an immediate delivery and followed by actual and continued change of possession of the chattels; and also because of actual fraud, in that the sale was designed to hinder and delay the creditors of said Vieu—especially said Fon Kee. A jury trial was had, resulting in a verdict and judgment for defendant.
Assuming that evidence to show the sale to be fraudulent in fact was admissible under the issues, then it was rlevant to prove that Vieu, the vendor, entertained the fraudulent intent to hinder and delay his creditors (Landecker v. Houghtaling, 7 Cal. 391); accordingly, Mr. *374Spencer, a bank teller, testified that he prepared and sent for Fon Kee a telegram as follows:—“April 5, 1893, N. Vieu, Dixon, Cal. Your note is past due. You no pay immediately, I commence suit. Fon Kee.” On this statement the paper purporting to contain the written message was read in evidence over plaintiff’s objection, defendant undertaking to prove that Vieu received it, but no such proof was made. We think the testimony did not show the paper to be competent; its object, no doubt, was to show that Vieu was impelled by this threat when he transferred the goods to plaintiffs; it was therefore necessary to raise a presumption that the message reached him, and the testimony did not proceed that far; where the message was sent, or by what means, does not appear; it should have been shown at least, that it was delivered to some telegraph company or agency for transmission. (1 Greenleaf on Evidence, 15th ed., sec. 40, note; Oregon Steamship Co. v. Otis, 100 N. Y. 446.)
Immediately after the execution of the bill of sale the plaintiffs began the removal of the trays and boxes from Vieu’s ranch, where they then were, to a neighboring ranch; Vieu did not participate in this work; as between him and the plaintiffs—his vendees—it appears that the sale was complete upon the delivery of the instrument evidencing the transfer. One Ah Loo testified in effect that Vieu told him the goods were removed because he, Vieu, was afraid somebody would stop the removal—prevent any transfer; this declaration, so far as can be gathered from the statements of the witness, occurred after the removal of the trays, etc., had been completed, and was certainly subsequent to the delivery of the bill of sale; it is not claimed that plaintiffs heard or had knowledge of it; its admission in evidence was therefore erroneous. (Jones v. Morse, 36 Cal. 205; Walden v. Purvis, 73 Cal. 518.)
As to the testimony of the witness, Marie Schleyer, that she, at Vieu’s request, made out a statement for Fon Kee, “to show how much money had been taken in,” *375we fail to see how plaintiffs could have been injured by its admission, though we also fail to perceive its pertinency; when, or where, or by or for whom, the money was taken, or how the statement bore on the issues, is not disclosed.
The errors noted may have been of not much consequence; but the evidence, as presented in the record, tending to show fraud, whether actual or constructive, was at best inconclusive, and the jury may have accorded controlling weight to the evidence erroneously admitted.
The judgment and order should be reversed.