I concur. The plaintiff's evidence shows that the sale of the concentrates was made to Chamberlain Co., and not to West. West was acting merely as their agent, and even if the contract of sale had been made in his name, which it was not, it is always permissable to show that it was for the use and benefit of his principals. This was shown here. (Ruiz v. Norton, 4 Cal. 355;Huntington v. Knox, 7 Cush. 371.)
As West is the plaintiff, and the one to whom the defendants claim the concentrates were sold, it would make no difference whether sold directly to him, or first to Chamberlain Co., and then by them to him, were it not that the complaint has specially alleged the deraignment of title through them.
The plaintiff's evidence tended to prove that J. E. Severance had been the owner of the concentrates; that before they were extracted from the mine he had made an agreement to sell them to Chamberlain Co.; that after they were extracted, he made a bill of sale to them, and they had fully paid him for them. This was certainly sufficient to vest the title in them, and authorize them to maintain an action for their possession as against a trespasser or stranger, without regard to whether there was any fraud in the sale or had been any delivery — want *Page 86 of delivery being also one of the grounds upon which the motion for non-suit was made, and granted. These questions are only material when the contest is between a purchaser and a creditor of the vendor having a lien by attachment or otherwise. (Thornburgh v. Hand, 7 Cal. 554;Bump, Fraud. Conv. 443, 511.) As the defendants had not yet come to their side of the case, there was, of course, no proof that either of them was a creditor of the vendor, or that any attachment had been issued, or any attempt made to levy the writ upon the property in dispute. When the motion was made, it only appeared that the title to the property had vested in the plaintiff; that he was consequently entitled to its possession; and that the defendants detained it from him. This, certainly made a prima facie case. As the case then stood, the defendants were merely strangers and trespassers. Until they had shown some right or interest in the property, it was no concern of theirs whether there was fraud in the sale, or had been any delivery, nor could the question be raised. (Packard v. Wood, 4 Gray, 307; Benj. Sales, Sec. 675.)