
    No. 9,601.
    Department Two
    November 22, 1884.
    ELIZA GARLICK, Appellant, v. W. H. BOWERS, Respondent.
    Evidence—Sale oe Goods—Declarations of Vendor after Sale.— Statements made by a vendor of personal property after the sale, in regard to its delivery to the vendee, are not admissible as evidence to impeach the sale.
    Instructions—Befusal to Give.—Instructions asked for, which are partly correct and partly incorrect, may be refused.
    Appeal from a judgment of the Superior Court of the county of Kern.
    Replevin for a lot of wheat. The defendant, a sheriff, admitted the seizure, and justified under a writ of attachment issued against the vendor of the plaintiff. The other facts sufficiently appear in the opinion of the court.
    
      S. Solon Hall, and Peck & Mahon, for Appellant.
    
      R. E. Arick, and W. J. Tuska, for Respondent.
   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.  