Krumdick v. White

Foote, C.

This action of claim and delivery for certain personal property was brought by the plaintiff as executrix of the last will and testament of her deceased husband, William Krumdick, against the defendant, White, who had purchased the property from one J. F. Edmunds, after Krumdick’s death, of which White had notice. Edmunds claimed the same by virtue of a written instrument made by Krumdick in his lifetime, while he lay wounded and unable to transact business.

The only claim under which Edmunds could have any right to sell the property, and transfer the title thereto to White, must be based upon the terms of the written instrument which Krumdick made to Edmunds.

If at Krumdick’s death the powers of agency given to Edmunds ceased under that instrument, then he could not sell the property, and under the testator’s will the executrix would have the right to the possession thereof.

The instrument was one which constituted Edmunds the agent of Krumdick while disabled, to carry on his business as a hauler of freights, and to do all acts in that behalf which Krumdick could. But it did not vest any interest in Edmunds to the subject-matter of the agency confided and intrusted to him, and at Krumdick’s death the power of Edmunds to sell ceased as to White, who had notice of Krumdick’s death before the former purchased the property. (Civ. Code, sec. 2356.)

It is plain, therefore, that the jury found contrary to the evidence, under the sixth instruction granted by the court for the plaintiff.

In this view of the matter, it becomes unnecessary to discuss any other point made, and we advise that the judgment and order be reversed.

Fitzgerald, C., and Belcher, C., concurred.

The Court.

For the reasons given in the foregoing opinion, the judgment and order are reversed.