In answer to appellants' first point, we say that the referee, having found that there was no delivery under the bill of sale (or, more properly, chattel mortgage) from Loring to Richards & Richards, and there being no statement of the evidence adduced on the trial before the referee, it is impossible for any Court to say that the finding of the referee was not warranted by the evidence. (See Tyson v. Wells , 2 Cal. 122; Grayson v. Guild , 4 Cal. 122, and the cases therein cited.)
To the second point, we say, the appellants in this point assume that they had once had the possession of the property, which is not the fact, as the report of the referee shows. It is an absurdity to talk about retaining possession, etc., when they never had possession. Hence, it is useless to determine what their rights would have been if they had ever been in possession.
The referee having found that there was no change of possession, under the mortgage, the case at bar stands on a parallel with that of Chenery v. Palmer , 6 Cal. 119. See, also, Fitzgerald v. Gorham , 4 Cal. 289; Samuels v. Gorham , 5 Cal. 226; § 15 of the statute of frauds, 201, Comp. Laws of Cal.
As to the third point, we say that the facts found by the referee do justify the conclusions of law, and the referee could not legally have come to any other conclusions, as fully appears by the cases last above cited.
JUDGES: Terry, C. J., delivered the opinion of the Court. Field, J., and Baldwin, J., concurring.
OPINION
TERRY, Judge
The referee's report shows conclusively that there was no delivery of the goods in question under the bill of sale from Loring to plaintiff. They continued in the possession of Webster, who was Loring's bailee, and who was directed by Loring to pay to plaintiff the amount of his claim against Loring, out of money arising from sales of the property.
The facts reported bring the transaction fully within the fifteenth section of the statute of frauds, and a new trial was properly refused.
Judgment affirmed.