DocketNumber: S. F. No. 311
Judges: Garoutte
Filed Date: 3/4/1898
Status: Precedential
Modified Date: 10/19/2024
The plaintiff, as' assignee in insolvency of the Bull & Grant Farm Implement Company, a corporation, has brought this action against defendant, a corporation, to recover fourteen thousand dollars damages, alleged to be the value of certain wagons and other vehicles wrongfully converted by defendant to its own use. Plaintiff appeals from the judgment and order denying Ms motion for a new trial.
The merits of this litigation are to be disposed of upon a consideration of the second cause of action. The material facts, as found by the trial court, may be substantially stated as follows: The Bull & Grant Farm Implement Company, upon ¡¡November 11, 1889, was the owner and in the possession of a large number of vehicles which it had purchased from the defendant, but was still indebted for the same. Thereupon the defendant canceled
As to the creditors of the Bull & Grant Farm Implement Company, the sale by it to defendant was void, for there was no immediate delivery and change of possession of the vehicles. (Murphy v. Mulgrew, 102 Cal. 547; 41 Am. St. Rep. 200; Byxbee v. Dewey (Cal. 1897), 47 Pac. Rep. 52.) Neither can there be any question as to the right of the assignee of the insolvent debtor, representing the creditors, to bring an action of the character here disclosed. (Brown v. Bank of Napa, 77 Cal. 544.) No demand for a return of the property was necessary before the action was brought. For defendant sets out by" its answer that the property belonged to it, and bases its right to defeat plaintiff’s cause of action upon those grounds alone. Under such circumstances no demand is required. (Parrott v. Byers, 40 Cal. 622.)
As already suggested, there being no immediate delivery and change of possession, the wagons and vehicles, as against credi
There was a large amount in value of these wagons and other vehicles which came into the hands of the assignee. Upon demand he delivered this property to the defendant. The title to it, as against the creditors, was in the insolvent when the assignee was appointed, and thereafter such title passed in trust to the assignee. By mistake of either law or fact, or both, as to the location of title in himself, the assignee gave over the possession of the property to defendant. If he had refused to deliver the property when it was demanded, unquestionably defendant would have failed to recover it upon action brought, for, as already suggested, the title as against it was in the assignee. It is now insisted that plaintiff, having delivered the property to defendant, is estopped from recovering it back or suing for its value. Plaintiff insists that he knew nothing of the original transaction between the two companies, and supposed and believed that the property had been consigned by defendant to his insolvent to sell simply on commission. In answer to this contention defendant insists that plaintiff was in the possession of all the facts when he delivered the property, or, if not in such possession, he had the means of knowledge at hand, which fact was, as against him, of equal potency with actual knowledge. There is nothing in the foregoing facts to justify a holding of the existence of an estoppel against plaintiff. Conceding a knowledge upon his part of all the facts claimed, at the time he delivered the property to defendant, still those facts do not create an estoppel against him. It is difficult to see how the mere delivery of property by a party in possession of it to a party claiming title to it bars the first party from ever attempting to regain its possession or its value. Vital elements of an estoppel are lacking in such a case. But, above and beyond all this, plaintiff was a trustee of the creditors. He held this property in trust for them. He stood in an entirely different relation to it as compared to property wherein the absolute ownership vested in him. As such trustee he had not the power to give it away, even if such were his intention. As trustee of the creditors he could not be held to this transaction, even if he was a party to it in fraud. How much less may he be held to it where he acted under mistake.
Judgment and order reversed, and cause remanded for a new trial.
Harrison, J., Van Fleet, J., McFarland, J., Temple, J., and Henshaw, J., concurred.