Garlick v. Bowers , 66 Cal. 122 ( 1884 )

The Court

-Evidence of statements made by the vendor, after he had sold the property, was clearly inadmissible. (Paige v. O'Neil, 12 Cal. 496 ; Visher v. Webster, 13 Cal. 58; Cohn v. Mulford, 15 Cal. 50; Jones v. Morse, 36 Cal. 205 ; Whitney v. Durkin, 48 Cal. 462 ; Hutchings v. Castle, 48 Cal. 153.) The plaintiff had introduced evidence, which, if true, showed that the property had been sold and delivered to her before the vendor made the statements which were testified to by defendant’s witnesses, against the objection of the plaintiff. Under such circumstances, the statements of the vendor could not be regarded as a part of the res gestee. Evidence of what he said after the sale and delivery of the property to the plaintiff was simply hearsay. For this error the plaintiff is entitled to a new trial.

The plaintiff requested the court to give several instructions, which were not given. We think none of them should have been given without modification, and that of itself constituted sufficient ground for the refusal. We think there is no error in the instructions given by the court.

In Williams v. Lerch, 56 Cal. 334, the question of what Avould constitute an immediate delivery, and an actual and continued change of possession, is quite fully considered, and we do not deem it necessary to add anything to what is there said on the subject.

Judgment and order reversed.