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Stem-Winder Min. Co. v. Emma & Last
Chance Consolidated Min. Co. (Idabo,)...1040

Stephens, People v. (Cal.).

856 Townsend v. City of Paola (Kan.).

Sternberg, Union Pac. Ry. Co. v. (Colo.)...1021 Townsend v. Petersen (Colo.)..

Sternes, Ex parte (Cal.)..

Sternes, Ex parte (Cal.).

Sternes, Ah Fong v. (Cal.)..

Sterrit, Calvin v. (Kan.)...

Stevens v. Higginbotham (Utah)..

..1132 Trautner, McIntyre v. (Cal.).
.1136 Traylor, Easter v. (Kan.)..
381 Trorlicht, Torlina v. (N. M.).

Stevenson, Reno Smelting, Milling & Re-
duction Works v. (Nev.)..

Stewart, Strait v. (Kan.). .
Stinson v. Carpenter (Cal.).
Stockton Combined Harvester & Agricul-
tural Works, Greenleaf v. (Cal.)...

103 Truckee Ice Co., McAulay v. (Cal.).
946 Truman v. Owen (Or.)...

.1136

Trumble v. Territory (Wyo.).. 317 Turner v. Turner (Cal.).. Tyrrell v. Baldwin (Cal.)..

304

Stockton Sav. & Loan Soc., Swain v. (Cal.) 365
Stoddard v. Nelson (Or.)
Stone v. McCann (Cal.)..
Stover v. Baker (Cal.).

Strait v. Stewart (Kan.).

Ullman v. McCormic (Colo.).......

221

596

619

15

606

68

434

665

.1081

959

116

716

369 Union Depot & R. Co., Schwenke v. (Colo.) 43 Union Pac. R. Co., Kiesel v. (Utah)... 499 456 Union Pac. Ry. Co. v. Springsteen (Kan.) 774 863 Union Pac. Ry. Co. v. Sternberg (Colo.)...1021 428 Union Pac. Ry. Co., Cottrel v. (Idaho).... 416 .1136 Union Pac. Ry. Co., Drake v. (Idaho).. 560 654 Union Pac. Ry. Co., Grant v. (Utah)...... 996 651 Union Pac. Ry. Co., Jensen v. (Utah)..... 994 271 Union Pac. Ry. Co., McBride v. (Wyo.)... 687 675 Union Pac. Ry. Co., Minty v. (Idaho)..

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Strand, In re (Cal.).

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400
705

Swain v. Stockton Sav. & Loan Soc. (Cal.) 365
Swazey, People v. (Utah)..

20 980

United States v. Kuntze (Idaho)..
United States v. Langford (Idaho)..
United States v. Late Corporation of Church
of Jesus Christ of Latter-Day Saints (Utah) 503
United States v. Late Corporation of Church
of Jesus Christ of Latter-Day Saints (Utah) 506
United States v. Late Corporation of Church
of Jesus Christ of Latter-Day Saints (Utah) 516
United States v. Late Corporation of Church
of Jesus Christ of Latter-Day Saints (Utah) 519
United States v. Late Corporation of Church
of Jesus Christ of Latter-Day Saints (Utah) 523
United States v. Late Corporation of Church
of Jesus Christ of Latter-Day Saints (Utah) 524
United States v. Maxwell Land Grant Co.
(N. M.)..

660

461

177

463

409

85

407

409

Taylor v. Baldwin (Cal.).

124

United States v. Shoup (Idaho)..

153 656

Taylor v. North Star Gold Min. Co. (Cal.)..
Taylor v. Opperman (Cal.).

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Upper San Joaquin Canal Co. v. Roach (Cal.) 304
Utah Min. & Manuf'g Co. of Cleveland,
Ohio, v. Dickert & Myers Sulphur Co.
(Utah).

Territory v. Anderson (Idaho).

417

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THE

Pacific Reporter.

VOLUME XXI.

(78 Cal. 439)

Gates v. CarQUINEZ PACKING Co. (No. 12,531.)

(Supreme Court of California. March 21, 1889.)

SALE-DELIVERY TO CARRIER.

Under a contract for the sale of fruit, the seller was to deliver the fruit on board the cars, consigned to the buyer, and send daily statements of weights. Upon its arrival at the buyer's cannery it was to be immediately reweighed, and the seller notified of any substantial difference in weights, and the fruit held for 12 hours for adjustment of weights and rebate for defect in quality. In case of failure to give notice, the shipping weight was to be taken as conclusive. Held, that the title passed upon delivery to the carrier, and loss from shrinkage during transit must be borne by the buyer.1

Commissioners' decision. In bank. Appeal from superior court, Solano county; A. J. BUCKLES, Judge.

George A. Lamont, for appellant. J. F. Wendell and O. P. Dobbins, for respondent.

own cost and expense, shall, during said term, gather said fruit each season when the same is in a suitable condition of ripeness for canning purposes, and deliver the same on board the cars at the railroad station at Vacaville, in said Solano county, consigned to party of the second part at Benicia, in open 50-pound boxes, such as are now used to transport fruit from said point to canneries. Freight from Vacaville to Benicia, and all charges thereafter, to be paid by said party of the second part. * * * Said fruit shall be consigned to the party of the second part at its cannery at Benicia, in said Solano county, and immediately upon its arrival at said cannery shall be weighed by said party * * * The party of of the second part. the first part shall send to the party of the second part, at the cannery at Benicia, a daily statement of the weights of the fruit shipped that day, and in case the weight at the canthe same, or in case the quality of the fruit nery shall not substantially correspond with to recover the sum of $301.60, balance alleged to be due for fruit sold and delivered shall not be according to contract as herein by plaintiff to defendant. The court below provided, the party of the first part shall be gave judgment for plaintiff, and defendant immediately notified by telephone or teleappealed. The facts are these: The plaintiff graph, and the fruit shall be held twelve owned a tract of land in Vaca valley, on which hours for inspection and adjustment of he was raising apricots, peaches, and Bartlett pears, and the defendant was engaged in the business of canning fruit at Benicia. On the 15th of October, 1886, the parties entered into a written contract for the sale and purchase of the fruit to be raised on the plaintiff's trees during the five years then next ensuing. The portions of the contract material to the determination of the questions presented on this appeal are as follows: "Said party of the first part sells, and said party of the second part buys, said fruit up pressed. The party of the first part, at his

BELCHER, C. C. This action was brought

on the terms and conditions hereinafter ex

Respecting delivery to a carrier as vesting title on a sale of chattels, see Hershiser v. Delone, (Neb.) 38 N. W. Rep. 863, and note. In general, as to when title passes, see Rechtin v. McGary (Ind.) 19 N. E. Rep. 731, and note; Jamison v. Simon,

(Cal.) 8 Pac. Rep. 502, and note.

v.21p.no.1-1.

weights, and arrangement as to rebate in case of defective quality, should the party of the second part be willing to accept the same at a rebate. Should said party of the second fruit, the quality of the fruit and the shippart fail to give such notice, or so hold said ping weight shall be conclusively taken as

correct.

It is further provided in the contract that the fruit "so delivered" shall be of certain sizes and quality, and that for "the fruit so delivered" the party of the second torney for appellant states the case very part shall pay certain named prices. The atclearly and concisely, as follows: "It is conceded that plaintiff has fully complied with all the terms of the contract on his part; that the fruit referred to in the contract was properly and correctly weighed at Vacaville, and there placed on board the cars, consigned to the defendant at Benicia. It is also conceded

that the fruit, as fast as it reached the can- The country buyer may refuse to accept nery of defendant at Benicia, was immedi- goods ordered from the city merchant, if they ately and correctly weighed. It was found prove, when received by him, not to be of upon comparison of weights that the defend- kind or quality ordered; but this does not ant's weights fell short of plaintiff's weights. change the rule that, if they are of such kind This shortage is conceded to be attributable and quality, they will be held in law to have solely to natural causes,-from evaporation been delivered to him at the place of shipafter being placed on board the cars at Vaca- ment, and to be at his risk while in transit. ville, and while in transit to defendant's can- In this case it was expressly stipulated that nery at Benicia. The only question involved in if defendant should reject any fruit because the case is, which weights are to govern, of a substantial inaccuracy in plaintiff's those of plaintiff at Vacaville, or those of de- weights, notice by telephone or telegraph fendant at Benicia? In other words, which should be immediately given to plaintiff, and, party, plaintiff or defendant, is to bear the in case of a failure to give such notice, the loss of the shrinkage of the fruit after being "shipping weights" should be conclusively placed on the cars at Vacaville, and while in taken as correct. The shipping weights were transit to Benicia?" the plaintiff's weights, and for what purpose were they to be deemed conclusively correct? We can see but one purpose, and that is to fix conclusively the number of pounds received and to be paid for by defendant. There is nothing in the balance of the contract necessarily in conflict with this view, and we therefore conclude that the judgment was right, and should be affirmed.

I concur: FOOTE, C.

I concur in the conclusion:

HAYNE, C.

PER CURIAM. For the reasons given in the foregoing opinion, the judgment is affirmed.

COBURN v. BROOKS et al.
(Supreme Court of California.

(78 Cal. 443) (No. 11,576.) March 21, 1889.)

EMINENT DOMAIN-PRINCIPAL AND SURETY. Code Civil Proc. Cal. 1872, § 1254, relating to proceedings in eminent domain, authorizes the plaintiff to take possession, pending the proceedings upon the execution of a bond, "to pay, as well the all damages which may be sustained by the decompensation in that behalf, when ascertained, as fendant, if, for any cause, the property shall not be finally taken for public use." Held, that it is not necessary to make a demand on the principal in order to maintain an action against the sureties on such bond.

The question presented must be determined by a construction of the contract. It is argued for appellant that, looking at the whole contract, the conclusion of the court below was not warranted; but we think it was. Mr. Benjamin, in his work on Sales, states the rule as to the delivery of goods to a common carrier as follows: "It is well settled that the delivery of goods to a common carrier, a fortiori to one especially designated by the purchaser, for conveyance to him or to a place designated by him, constitutes an actual receipt by the purchaser. In such cases the carrier is, in contemplation of law, the bailee of the person to whom, not by whom, the goods are sent; the latter in employing the carrier being considered as an agent of the former for that purpose. It must not be forgotten that the carrier only represents the purchaser for the purpose of receiving, not accepting, the goods. Section 181. And the same learned author further says that even where the vendor agrees to make the delivery at a distant place, "thus assuming the risks of the carriage," his "duty to deliver them in merchantable condition is complied with if the goods are in proper condition when delivered to the carrier, provided the injury received during the transit does not exceed that which must necessarily result from the transit." Section 693, 3d Amer. Ed., and section 1640, Ed. 1888. Now, the Department 1. Appeal from superior court, plaintiff's fruit was to be weighed and deliv-city and county of San Francisco; JOHN ered on board the cars at Vacaville, and the HUNT, Judge. defendant was to pay the freight and all Code Civil Proc. 1872, § 1254: "At any charges thereafter, and also an agreed price time after service of summons, the court may per pound "for the fruit so delivered." Un-authorize the plaintiff, if already in possesder the rule above stated, it must therefore sion, to continue therein, and, if not, then be held that the fruit was received by defendant at Vacaville, and the fact that the right was reserved to reject it, after its arrival at the cannery, if the plaintiff's weights proved not to be substantially correct, or the quality was not according to contract, is not material. There is a broad difference between the receipt and acceptance of goods. The right to reject goods because they are not of the kind or quality required by the contract is, of necessity, usually exercised by the buyer after they have been actually received by him; and this is always the case where they are consigned to him from another place.

to take possession of and use the property during the pendency, and until the final conclusion, of such proceedings, and may stay all actions and proceedings against the plaintiff on account thereof; but the plaintiff must give security, to be approved by such court or judge, to pay, as well the compensation in that behalf, when ascertained, as all damages which may be sustained by the defendant, if, for any cause, the property shall not finally taken for public use.

Crittenden Thornton and F. H. Merzbach, for appellant. Fox & Kellogg, for respondent.

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