Cardinell v. Bennett
California Supreme Court
Appeal from the District Court, Nineteenth Judicial District, City and County of San Francisco. Wm. H. Carpenter owned the horse “ Chief Crowley,” and on the 7th day of February, 1874, entered into an agreement with the plaintiff, by which the plaintiff was to give him his (Cardinell’s) buggy and two hundred and fifty dollars for the horse, on Monday, the 9th day of February, following.
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Appeal from the District Court, Nineteenth Judicial District, City and County of San Francisco. Wm. H. Carpenter owned the horse “ Chief Crowley,” and on the 7th day of February, 1874, entered into an agreement with the plaintiff, by which the plaintiff was to give him his (Cardinell’s) buggy and two hundred and fifty dollars for the horse, on Monday, the 9th day of February, following. On the 7th, after the agreement had been made with the plaintiff, Carpenter sold the horse to one Bennett for three hundred and fifty dollars, but at the same time informed Bennett of his agreement with the…
1Opinion of the Court
The agreement between Carpenter and Cardinell was not a sale, but an agreement to sell—an executory, not an executed, contract. Cardinell never owned or acquired the title to the horse. It never was transferred to him, and he never had the right to its possession. (Civil Code, secs. 1661,1721, 1726-8; Story on Sales, secs. 1 and 274.) An action of this kind cannot be maintained, unless the plaintiff, at the time of the conversion, is the owner of the property, and entitled to its imme*477díate possession. (1 Chitty on Pleadings, 148-9 ;z 2 Greenl. on Ev. sees. 561-3.) Replevin or trover was not…
2Cases cited2 opinions
- Saltus & Saltus v. EverettNew York Supreme Court · 1838
- M'Donald v. HewettNew York Supreme Court · 1818
3Cited by8 opinions
- Garcia v. GunnCalifornia Supreme Court · 1897
- Hilmer v. HillsCalifornia Supreme Court · 1902
- Yukon River Steamboat Co. v. GrattoCalifornia Supreme Court · 1902
- Young v. Matthew Turner Co.California Supreme Court · 1914
- Keech v. BeattyCalifornia Supreme Court · 1899
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