Hubbard v. Macfarlane

Opinion of a majority of the- Court by

Harris, C. J.

This is entitled an action of trover, in which it was alleged that the defendant had converted to his own use a packet of diamonds, consisting of three studs, one ring and other articles, of the value in the whole of $2,500.

At the hearing the following statement was made by counsel for the plaintiff: That, although in the declaration, the sum claimed was $2,500, from the testimony taken in the morning (at the bedside of Mr. Christie, then very sick) to be used at the trial, he could only claim the sum of $600.

The plaintiff put in the evidence of Mr. Christie, which is as follows: “I left three diamond studs with Henry Macfar-la-ne; they were shirt studs. About the 11th of November I left them with him; they were left to secure Mr. Maefarlane on a draft of about $575. I don’t recollect whether I addressed the box to myself or to Mr. Hubbard; they were to have been forwarded to Mr. Hubbard for me, and no one else, I don’t recollect at the time the diamonds were left with Mr. Maefarlane whether Mr. Hubbard was in debt to me. He had owed me. I received the diamonds myself afterwards from Mr, Maefarlane. Mr. Hubbard did not know anything about the arrangement at the time. I never conveyed the- diamonds to Hubbard. Before leaving for Japan I spent some time in San Francisco, and received more money from Mr. Hubbard, and whether I gave him my note or any other evidence of my indebtedness to him, I don’t remember.”

Cross-examination by defendant: “I presume the draft was paid by Mr. Hubbard, as it never was presented to me; it was my own draft endorsed by Mr. Maefarlane. I value the studs at $1,300, but I would not sell them at $1,500.”

And likewise a letter (from defendant to plaintiff), which, as far as it concerns this case, is as follows:

“To business now — Chris, having been pushed for a little money on his departure, I have taken his draft on you for $575, and hold as security his diamonds, which are sealed up and addressed to you, and as soon as the draft is paid, I will forward the package to you through Wells, Fargo & Co.’s Express.”

The defendant himself took the stand and testified that he never had any conversation with the plaintiff relative to diamonds. Christie told me that Hubbard was indebted to him, and he left the package with me. Hubbard never claimed the diamonds of me until the suit. I returned the diamonds-to Christie.a year ago in January; John H. Pafy, of Bishop & Co., stated that on the llfch of November, which is the day before the date of the letter above mentioned, he gave up to Christie, a mortgage of the plaintiff’s in favor of Christie on some property in Oakland, California, which had been left at their bank (Bishop & Co.’s), as a collateral secui’ity for the payment of Christie’s note of $1,500, which xxote had been paid by Christie. This exxded the ease, and counsel for plaintiff requested the Court to direct the jury that the letter above quoted was conclusive as evidence betweexx the plaintiff axxd the defendant; that the diamonds were held by the defendant as a security for the plaintiff; which the Court refused to do, but instructed the jury that the letter was evidence for them to weigh.

To this refusal of the Court exception was takexx.

Now it will be noticed that there is a variation between the complaint and the proofs adduced by the plaintiff himself. In his complaixxt he proceeds on the prixxciple and oxx the allegation that the diamonds are the plaintiff’s. In his inotion for instructions to the jury, he avers that they were only held as a security to indemnify a draft of $575. Ixx his opening to the jury he claims that he found from evidence taken this morning (that of Mr. Christie) that he could only claim $600, instead of the $2,500 alleged in the complaint,, and yet the letter, the subject of contemplation, says: “I have taken his (Christie’s) draft on you for $575.” Now, he could have discovered before that morning that he was only entitled to $600, unless he had altered his mind regarding the nature of the claim. It would appear as though, in the first place, he considered that he was entitled to the diamonds at any rate, or to their full value; and afterward adopted the theory that he only was entitled to them as security for the payment of the-draft; so it follows that the letter was not so conclusive to the mind of the plaintiff himself as to enable him to form the-proper conclusions without testimony; and further still, there is no declaration made upon the-draft whatsoever, and although at the trial it was admitted that the plaintiff' had paid the draft, and it was not proved nor attempted to be proved, nor admitted that the plaintiff had been damnified by the payment of the draft, it was perfectly competent for defendant to try to- prove that he paid' it from- funds in hand of Christie’s.. The words of the letter-relied upon are these: “I have taken his-draft on you for-$575, and'hold as security his diamonds, which are sealed up and addressed to you, and as soon as the draft is paid I will forward the package to you.” Now, it will, be observed that he does not say that he held them as security to- plaintiff, and he offered to prove that the plaintiff did not regard it so; which he did, first, by the evidence of Mr.. Christie, introduced by the plaintiff himself, in which he says they were left to secure Mr. Macfarlane, and that the diamonds were to be forwarded to Mr. Hubbard for me (Christie), and for no one else; and the defendant supports that evidence by showing- that, at the time of writing the letter, the plaintiff" owed Mr. Christie- more than $1,500, and did not pay the draft relying on the diamonds; and, lastly, that though the-draft was paid in due course, the plaintiff" never called for the-diamonds, but that they remained with the defendant until Mr. Christie returned here twenty-six months afterward, when they were delivered to him; and that, in point of fact, the plaintiff never demanded the diamonds or said anything about them to-the defendant from the date of the letter, 12th November, 1874, to the date of the commencement of this suit,. 15th December, 1877 — more- than, three years. Now, therefore-, inasmuch as the- letter does not state that the defendant held the- diamonds- as security for Hubbard, it was for the-jury to .determine what the force of the letter was, and whether the .plaintiff had been misguided and had suffered loss by it in the payment of the draft; and it was right that they should weigh all the circumstances in order to arrive at a proper conclusion. So that the letter, as well as all the other ■evidence in the case, was properly left to the jury to consider.

E. Preston, counsel for the plaintiff.

•I. M. Davidson and Cecil Brown for the defendant.

The exceptions are overruled.