CHARLES E. GREENE, Respondent, v. DANIEL MEYER and J. F. BAKER, Appellants

CHARLES E. GREENE, Respondent, v. DANIEL MEYER and J. F. BAKER, Appellants. No. 4879; January 27, 1877. Trover—Proof of Right to Possession.—In an action of trover the plaintiff must prove himself to be entitled to the immediate possession of the goods alleged to have been converted. APPEAL from Fourth Judicial District, San Francisco County. This was an action of trover. E. E. Morgan’s Sons were San Francisco commission and shipping merchants engaged in chartering ships and receiving on board vessels controlled by them wheat and other goods for delivery at European ports, sales there to be for the account of and at the risk of the owners of the goods, the latter agreeing with these shipping merchants on the rates to be charged. Baker was master of the ship “Pride of the Port,” whereon the wheat, out of the shipping of which the case originated, was placed by the Morgans for transportation under their agreement with the plaintiff and his assignors to Cork, Ireland. Meyer was a banker in San Francisco. After their making the shipment referred to in the decision, the Morgans, being deeply in debt to Meyer already, increased the indebtedness largely and gave him the bill of lading as collateral. Meyer knew at the time what the character of the Morgans’ business was and had every reason to know that the wheat was the property of them only in a representative capacity, also that they were insolvent. The suit was begun immediately after the making of the loan; the trial court gave judgment against Meyer, but not against Baker. Delos Lake for respondent; Howe & Rosenbaum and G. F. & W. H. Sharp for appellants. [MAJORITY — McKINSTRY, J.] McKINSTRY, J. At the trial it was admitted: “The plaintiff and his assignors delivered the wheat described in the complaint to Morgan’s Sons, to be shipped by them to England for sale. Morgan’s Sons placed the same on board the ‘Pride of the Port’ for shipmént in accordance with said agreement. ’ ’ The wheat was shipped by Morgan’s Sons, and the bill of lading ran to them. The defendant Baker was in actual possession of the wheat, with the right to earn the freight thereon. Neither the plaintiff nor his assignors have had the right to the immediate possession of the wheat at any time since the same was shipped. In this class of actions the principle is of universal application that the plaintiff must prove himself to be entitled to the immediate possession of the goods alleged to have been converted. The court below properly entered judgment in favor of one defendant, but should have rendered a like judgment in favor of the other. Judgment and order reversed and cause remanded with an order to the court below to enter judgment in favor of the defendant Meyer. I concur: Niles, J. I dissent: Rhodes, J. [CONCURRENCE — CROCKETT, J.] CROCKETT, J. I concur. The action is trover against two defendants to recover the value of certain wheat of the plaintiff, alleged to have been converted by the defendants to their own use. The court below finds that at the commencement of the action “the defendant Baker was in the lawful possession of said wheat, as master of said ship, for the purpose of transportation to Cork aforesaid, and did not unlawfully convert the said property to his own use, and that said Baker is entitled to judgment in his favor in this action.” This was an adjudication in this action that at the commencement of the action the plaintiff was not entitled to the possession, and judgment was entered in favor of the defendant, Baker, on this ground. From this judgment the plaintiff has not appealed, and it, therefore, stands as finally adjudged that the plaintiff was not entitled to the possession at the commencement of the action. But the court finds certain facts from which it concluded, as a matter of law, that the other defendant, Meyer, had converted the wheat, and entered a judgment against him for its value, and from this judgment Meyer appeals. In this class of action the rule is of universal application that the plaintiff cannot recover unless, at the commencement of the action, he was entitled to the immediate possession of the property: Bouvier’s Institutes, secs. 3519, 3520, 3524, and authorities there cited. In this action, it having been adjudged that the plaintiff was not entitled to the immediate possession, and this adjudication not having been appealed from, and remaining still in force, the plaintiff is concluded by it, and it results that the plaintiff was not entitled to recover, in this form of action, against the defendant, Meyer„