Babcock v. Briggs
California Supreme Court
Appeal from the District Court, Fourth Judicial District, City and County of San Francisco. The complaint averred that the plaintiffs were merchants, and had in their employ one Ver Mehr as a clerk, and entrusted him with the collection and possession of large sums of money ; and that the defendants kept a gambling establishment; and the said Ver Mehr lost at play at the defendants’ establishment, and the defendants won and received from him thirty-five thousand dollars of…
Read the full summary
Appeal from the District Court, Fourth Judicial District, City and County of San Francisco. The complaint averred that the plaintiffs were merchants, and had in their employ one Ver Mehr as a clerk, and entrusted him with the collection and possession of large sums of money ; and that the defendants kept a gambling establishment; and the said Ver Mehr lost at play at the defendants’ establishment, and the defendants won and received from him thirty-five thousand dollars of the plaintiffs’ money; and that the plaintiffs demanded the same from the defendants, but the defendants refused to pay…
1Opinion of the Court
Injured party may waive tort, and sue in assumpsit. (Fratt v. Clark, 12 Cal. 90; Roberts v. Fvans, 43 Cal. 382; Tuite v. Wakelee, 19 Cal. 692; Caussidiere v. Beers, 2 Keyes, 198; Civil Code, sec. 1621.)
Cope & Boyd, for Respondents.
The action is not upon a contract within the meaning of the statute. (Code of Civil Procedure, secs. 537, 538.) The gravamen of the action is a tort—a wrongful conversion of the property and money of the plaintiffs. There is no allegation of any promise or undertaking on the part of the defendants, and the idea of a contract is expressly negatived by the averments…
2Cases cited3 opinions
- Roberts v. EvansCalifornia Supreme Court · 1872
- Caussidiere v. BeersNew York Court of Appeals · 1865
- Tuite v. WakeleeCalifornia Supreme Court · 1862
3Cited by5 opinions
- Hallidie v. EngingerCalifornia Supreme Court · 1917
- Stone v. Superior CourtCalifornia Supreme Court · 1931
- Tabor v. Big Pittsburg Consolidated Silver Mining Co.U.S. Circuit Court for the District of Colorado · 1883
- Stone v. Superior CourtCalifornia Supreme Court · 1931
- Willett & Burr v. AlpertCalifornia Supreme Court · 1919