No. 2,410.

#### ALFRED ROBINSON, Respondent, v. LOUIS HAAS, Appellant.

Bailment. — The delivery of personal property to another, by the owner, to he taken care of, and returned at a stated time, upon the terms that the latter is to he compensated ont of its increase, is a mere bailment, for the benefit of both parties, and does not divest the title of the true owner.

Idem. — Sale by Bailee. — -Evidence.—The purchaser of property, from a bailee, stands in privity with the latter, and the letters of the bailee, written to his bailor, or other admissions of his while in possession, going to show how he held the property, are proper evidence against the bailee, or his transferee.

Sale op Pebsonal Ppopebty. — Title.—A sale of personal property passes to the purchaser only such title as the vendor had.

Bailor and Bailee.-— Paetnebship. — A contract between A. and B., by which A. transfers to B. the possession of a flock of sheep, upon the terms that B. should herd and take care of them for three years, at the end of which time he was to return to A. the original number of sheep entrusted to him, and the increase be equally divided between them, does not constitute a partnership between A. and B. in the sheep.

Appeal from tbe District Court of tbe Twelfth District, City and County of San Francisco.

Tbe plaintiff owned a large number of sbeep, and contracted witb O. G. Rood to keep them, for a certain length of time, in Santa Barbara county, upon tbe terms that at tbe end of that time, tbe original number of sbeep should be made good to plaintiff out of the flock; and tbe increase, if any, divided between plaintiff and said Rood.

In 1864, wbicb was a dry season, Rood, by permission of plaintiff, left Santa Barbara county, witb tbe sbeep to seek *475for pasture. After leaving Santa Barbara County, Rood continually wrote to plaintiff, concerning Ms movements. Finally, in 1865, be returned to California, wbicb be bad left, and arrived at Yisalia in Tulare county. While at Yisalia, Rood sold tbe sbeep to tbe defendant.

Plaintiff having ceased to bear from Rood, made every effort to find him and finally learned that defendant bad purchased a flock of sbeep of him, on tbe thirty-first day of March, 1865. In June, 1865, defendant was informedtbat tbe sbeep belonged to plaintiff. Afterwards tbe plaintiff demanded tbe sbeep of defendant, wbicb demand was refused.

Plaintiff then brought bis action. On tbe trial tbe letters from Rood to tbe plaintiff while be (Rood) was in possession of tbe sbeep, going to show bow be held them, were offered in evidence by tbe plaintiff, and admitted against tbe objection of defendant.

Judgment was for plaintiff and defendant appealed.

*M. G. Cobb,*for Appellant.

Tbe letters written by Rood to plaintiff contain propositions of fact, wbicb are very material to tbe issue. They are:

P. That O. G. Rood moved tbe flock of sbeep be took with him from Santa Barbara County in June, 1864, from place to place, until on tbe 9th day of March, 1865, be bad them at Yisalia.

2. That on tbe 24th day of March, 1865, tbe same sbeep were still in bis possesion at Yisalia, and required shearing.

3. That “a good many,” of tbe original 2,000 ewes and “nearly all” tbe increase, (“my,” tbe writer’s increase,) died on tbe way.

4. That on tbe 24th day of March, 1865, tbe flock numbered 1,700 bead in all; and

5. That Rood considered tbe sbeep as being owned by tbe plaintiff.

Taken in connection with tbe defendant’s admissions to tbe witness Wise, and with bis letter to and draft on tbe *476witness Earrish, these letters tend to establish the indentitj of the 1,500 sheep purchased by the defendant of Rood, with the flock moved by the latter from Santa Barbara County in June, 1864, if not almost wholly with the 2,000 ewes delivered by the plaintiffs to Rood under that written coutract.

But, if these letters be excluded from the evidence in the case, then there seems to be no proof connecting the 1,500 sheep purchased by the defendant of Rood in the beginning of April, 1865, (we here give the most liberal construction to plaintiff’s case, as made out by him on the trial) with the sheep which nearly a year prior we find in the possession of Rood in Santa Barbara County, while there *is*evidence on the part of the defendant directly tending to show that those 1,500 sheep are different and other sheep, than those which were in the possession of Rood in Santa Barbara County under that written contract.

We conclude, then, that the jury considered these letters as very material evidence — as establishing the plaintiff’s property in those 1,500 sheep.

Yet, the statements which these letters contain do not derive their credibility from having been made by a witness under oath, but solely from the veracity and competency of a person, whom the very party which asks us to accept those statements as true, charges with gross bad faith and dishonesty — of a person who had made them without the sanction of an oath, and whose veracity and competency for making them, the defendant whose rights they so materially affect, has had no opportunity to test. These letters are *hearsay;*they do not come under the exceptions to the rule excluding *hearsay*evidence and they cannot bind the defendant, because they were not written by him. ( *Vide*1. Phillips on Evidence, Chap. 8, Sec. 1; Greenleaf on Evidence, ¶ 98; Greenleaf on Evidence, ¶ 99; 7 Cranch, 295; *Crocker*v. *Lewis,*3 Sumner 1, 3 Cal. 100.)

The written contract between Rood and the plaintiff made them copartners, if only as to the increase from the two thousand ewes, then Rood might have made a sale of such *477increase to tbe defendant valid, and binding upon tbe plaintiff. Tbe inquiry then bero is; did that written contract create a partnership between tbe plaintiff and Rood ? (Parsons on Partnership, cb. 4, page 36 ; Parsons on Partnership, cb. 5, page 41 ; 1 Daly, N. Y. Com. Pleas, 520 ; 47 Barb. 317 ; 30 Cal.) That plaintiff gave to Rood tbe right to, and Rood did, move tbe sheep from place to place, oyer a large area of country, and for a long time plaintiff bad Yoluntarily parted with tbe possession of tbe sheep, and bad given tbe absolute management and control oyer tbe same to Rood, all going to show tbe apparent right of disposition, and if Rood bad tbe apparent right of disposition tbe plaintiff could not recover. *(Vide Crocker*v. *Crocker, ei. al.*31, N. Y. 507,

*dully Be Wiser*for Respondent.

Tbe question in reference to tbe admission of tbe letters of Rood in evidence is, *were the letters properly admitted in evidence, and notivhether theyioere to he accepted as true.*Tbe first is a question of law for tbe Court, and tbe last a question of fact for tbe jury.

Haas and Rood were privies, Haas' bad Rood’s title, and nothing more, and Rood’s statement as to what bis title was, while be was connected with tbe property, are' evidence against Haas. *(Vide*1. Greenleaf on Evidence, sec. 23; *vide*Greenleaf, vol. 1, sec. 189, edition of Redfield ; also sec. 190 and 191, and *seq. idem ; JSeywood Bubber Go.*v. *Deucklee,*30 Yt. 29 ; *Bard*v. *Fitzpatrick,*4 Gray 89 ; *Miller*v. *Bingham,*29 Yt. 82.) Even if tbe plaintiff and. Rood bad been partners under tbe contract, then Rood wonld have bad no right to sell any sheep, unless there was an increase in which be bad an interest while tbe contract was in existence. This was never pretended by tbe defendant to have been tbe case.

When parties are sought to be made partners, by operation of law, so far as third persons are concerned, it is material to inquire, whether their contract contemplates dealing with such third person, or whether tbe party sought to be charged bad any interest, either direct or indirect, *478in the transactions upon which it is sought to charge him. The only item in which Bood and Bobinson were jointly interested, so far as third persons were concerned, was in the sale of the wool, the wethers, and the increase, which was to be sold by Bobinson, and half paid to Bood. ( *Vide*Story on Part., secs. 84, 36, 38, 42, 43, 30 Cal. 97 ; *vide Wheeler*v. *Farmer,*July T. 1869.)

If Bobinson had given Bood a bill of sale; or if a negotiable instrument had been indorsed and delivered to him, or if he had made a deed, absolute on its face to him, then he would have been invested with apparent ownership. *{Vide*13 Barb. p. 372).

Wallace, J.,

delivered the opinion of the Court, Bhodes, C. J., and Ckoceett, J., concurring:

There was no error in admitting in evidence the letters of Bood, written by him while he was in 'possession of the sheep, and addressed to Bobinson. Hass claimed the property by purchase of Bood; he therefore stood in privity with the latter, and these letters, or any other admissions made by Bood while in possession, going to show how he held the property, would be proper evidence, against Bood himself, or any subsequent transferee of his.

There is nothing in the point that the contract of May, 1863, between Bobinson and Bood, constituted them partners. It was simply an employment of Bood to take care of Bobinson’s sheep, upon the terms that at the end of three years, the original number of 2,000 head should be first returned to Bobinson, and then the increase should be equally divided between Bobinson and Bood. At the time Bood sold to Haas there was no increase whatever over the original number, but several hundred less than that number. Bood could have claimed none of these sheep as against Bobinson; and we have not been pointed to any principle of law by which Haas occupies a more favorable position than Bood, his vendor, would have done.

The Court below refused to instruct the jury, at the instance of the defendant, that as Bobinson had intrusted his *479sheep to Bood to drive to distant parts of tiie State in quest of feed, be thereby gave him credit, and enabled him to impose himself on Haas as the owner of the sheep, and that — Haas having purchased under these circumstances-^-Bobinson, though he might be the true owner of the sheep, could not recover.

The maxim, *nemo plus juris,*etc., is generally applicable to transfers of chattels. By the general rule of the English common law, a sale of goods made would pass to the purchaser only such title as the vendor had. Sales in market *overt*formed an exception to this rule, but in this State there is no market *overt.*

The delivery of the sheep to Bood by Bobinson, was a mere bailment for the benefit of both parties, and did not divest the title of the true owner.

We see no error in the record; and the judgment and order denying a new trial are affirmed.