12 P.2d 1059 | Cal. Ct. App. | 1932
The plaintiff had judgment against the defendant upon two checks executed and delivered to the plaintiff by James H. Mitchell, now deceased. From this judgment the defendant appeals.
The record shows that on or about the twenty-seventh day of January, 1930, James H. Mitchell, signing his name as "J.H. Mitchell", made, executed and delivered to the plaintiff two checks in the words and figures following, to wit:
"Willows, Cal., Jan. 27th, 1930.
"Bank of Willows 90-476
"Pay to Nino Aimo or order $566.40/100 Five Hundred Sixty six and 40/100 dollars, for 35.40 tons hay at 16.00 per ton.
"J.H. MITCHELL."
"Willows, Cal., Jan. 27, 1930
"Bank of Willows. 90-476
"Pay to Nino Aimo or order $2000.00/xx Two Thousand ____ Dollars, first payment on 53 head milch cows or heifers at $100 each to be selected.
"J.H. MITCHELL."
The record further shows that James H. Mitchell died testate on or about the thirtieth day of January, 1930, and that the two checks herein referred to were not presented by the plaintiff to the Bank of Willows for payment, prior to the death of James H. Mitchell. After the appointment of the defendant as executrix of the estate of said deceased the checks referred to herein were presented to her for allowance and payment, and allowance and payment were refused. Within the time allowed thereafter, this action was begun.
The answer of the defendant denied the nonpayment of the respective checks, denied the allegations in respect *499 thereto, and after setting forth the death of James H. Mitchell on the thirtieth day of January, 1930, and alleging the pendency of negotiations relative to the purchase of the cattle mentioned in one of the checks, set forth the following facts as a defense thereto:
"That said defendant avers that after the death of said James H. Mitchell, as aforesaid, said plaintiff took possession of said cattle, and the whole thereof, and during the months of July and October, 1930, said plaintiff sold about twenty-seven (27) head of said dairy cows and received therefor the sum of One Hundred Ten ($110.00) Dollars per head, or the sum of Twenty-Nine Hundred Seventy ($2970.00) Dollars. That said sum of Twenty-Nine Hundred Seventy ($2970.) Dollars so received by said plaintiff for said twenty-seven head of cows was greater than, and in excess of the amount which said plaintiff agreed to accept and was to receive from said James H. Mitchell, deceased, for said twenty-seven (27) head of cows.
"That said defendant avers that after the death of said James H. Mitchell, as aforesaid, and on or about the 8th day of October, 1930, said plaintiff sold the remainder of said dairy cows, to-wit: Twenty-six (26) head, to one Thad Wait, for a sum, which said defendant is informed and believes, and so avers the fact to be, was in excess of the sum said plaintiff agreed to accept and was to receive from said James H. Mitchell, deceased, for said twenty-six head of cows.
"That said defendant avers that said plaintiff, in selling said cattle, as aforesaid, did so as the owner thereof, and that he made, executed and delivered to the respective purchaser, a bill of sale therefor, and that the price which said plaintiff received for all of said cattle was greater than and in excess of the amount which he agreed to accept and was to be paid therefor by said James H. Mitchell, deceased. That by reason of the foregoing, said plaintiff has sustained no damage, and that there is not any sum due, owing and unpaid to said plaintiff on account of said claim set forth in said complaint on file herein."
As a further defense, and by way of cross-complaint, the defendant set up that at the time the plaintiff sold the twenty-six head of cows mentioned in the answer, the plaintiff *500 sold twenty-four head of hogs belonging to the estate of James H. Mitchell, deceased, and received therefor the sum of $480, for which sum judgment was prayed against the plaintiff. The answer pleads the facts which we have referred to herein by way of estoppel to the plaintiff's cause of action. The cause was submitted to the court upon an agreed statement of facts, as follows:
"It is hereby stipulated by and between H.W. McGowan, Esq., as attorney for plaintiff above named and Wm. M. Stafford, Esq., as attorney for defendant above named, that the facts hereinafter in this stipulation set forth are true and correct and may be accepted and regarded as admitted facts upon the trial of the above entitled action. 1. That on the 24th day of January, 1930, said plaintiff above named and J.H. Mitchell made and entered into a contract wherein and whereby said plaintiff agreed to sell and said J.H. Mitchell agreed to purchase certain personal property, to-wit: fifty-three (53) head of dairy cows, and that on said 24th day of January, 1930, a bill of sale of said cattle above mentioned was made and executed by said plaintiff above named to said J.H. Mitchell, deceased. That a true and correct copy of said bill of sale is hereto annexed and marked `Exhibit A', and made a part hereof.
"2. That on the 27th day of January, 1930, said James H. Mitchell, deceased, made, executed and delivered to said plaintiff a check which is in words and figures as follows:
"`Willows, Cal. Jan. 27, 1930.
"`Bank of Willows 90-476
"`Pay to Nino Aimo or order $2000./xx Two Thousand ____ Dollars, First payment on 53 head milch cows or heifers at $100 each, to be selected.
"`J.H. MITCHELL.'
"3. That thereafter and on the 30th day of January, 1930, said James H. Mitchell, also known as J.H. Mitchell, died testate in the County of Glenn, State of California, and that on the 28th day of February, 1930, said defendant was by an order of the above entitled court made and given, appointed the executrix of the estate of said decedent, and that said defendant ever since said day last above mentioned *501 has been and now is, the duly appointed, qualified and acting executrix of the estate of said decedent.
"4. That said defendant as the executrix of the estate of said James H. Mitchell, deceased, caused to be published as required by the provisions of section
"5. That thereafter and within the time required by the notice to creditors published in the estate of said decedent, said plaintiff filed in the above entitled court in the records of said estate, his verified claim in the sum of two thousand ($2000.00) dollars, based upon said check. That thereafter and on November 1, 1930, said claim was rejected in whole by the defendant above named as executrix of the estate of said decedent.
"6. That after the death of said J.H. Mitchell, as aforesaid, said plaintiff took possession of said cattle described in said bill of sale hereto annexed and marked `Exhibit A', and that during the month of July, 1930, said plaintiff sold twenty-seven (27) head thereof for the sum of One Hundred Ten ($110.00) Dollars per head, or the sum of Two Thousand Nine Hundred Seventy ($2970.00) Dollars. That thereafter and on or about the 8th day of October, 1930, said plaintiff sold the remainder of said cattle to one Thad Wait. That when said plaintiff resold said cattle in the months of July and October, 1930, as aforesaid, he did so as the sole and exclusive owner thereof, and made, executed and delivered a bill of sale therefor to the purchasers thereof.
"7. That at the time of the death of said James H. Mitchell, as aforesaid, he was the owner of, and entitled to the possession of twenty-four (24) head of hogs, together with the increase thereof, which were at said time situated on the ranch of said plaintiff at Stonyford, Glenn County, California. That said hogs were of the value of four hundred eighty ($480.00) dollars, and were so appraised by the Inheritance Tax Appraiser of the estate of said decedent.
"8. That on the 8th day of October, 1930, when said *502 plaintiff sold said dairy cows as above stipulated, he also, and at the same time sold said twenty-four (24) head of hogs, together with the increase thereof, to said Thad Wait, and that at said time said hogs were the property of, and belonged to the estate of said James H. Mitchell, deceased. That said plaintiff had never been authorized or empowered to sell said hogs, by said defendant as executrix of the estate of said decedent, or by anyone acting for and on her behalf. That said plaintiff has never made or rendered any account to said defendant as executrix of the estate of said decedent, or of the proceeds of said sale, nor has he paid to said defendant, as such executrix, the money realized from the sale of said hogs.
"9. That on or about the 27th day of January, 1930, said James H. Mitchell, deceased, purchased thirty-four (34) tons of hay from said plaintiff, and which hay was at said time on the ranch of said plaintiff at Stonyford, California.
"10. That on said 27th day of January, 1930, said James H. Mitchell, deceased, made, executed and delivered to said plaintiff a check, which is in the words and figures as follows:
"`Willows, Cal. Jan. 27th, 1930.
"`Bank of Willows 90-476.
"`Pay to Nino Aimo, or order, 566 40/100 Five hundred sixty-six and 40/100 dollars for 35.40 tons hay at 16.00 pr. ton.
"`J.H. MITCHELL.'
"11. That thereafter, and within the time required by the notice to creditors published in the estate of said decedent, said plaintiff filed in the above entitled court in the records of said estate, his verified claim in the sum of five hundred sixty-six and 40/100 ($566.40) dollars, based upon said check. That thereafter, and on November 1, 1930, said claim was rejected in whole by the defendant above named, as executrix of the estate of said decedent.
"12. That said thirty-four (34) tons of hay were never removed from said ranch of said plaintiff at Stonyford, California, but remained thereon and were fed and given to said fifty-three head of cattle, hereinabove referred to, and which said plaintiff sold as hereinabove stipulated and *503 agreed, as well as other cattle and livestock owned by plaintiff on said ranch.
"Dated, February, 1931.
"H.W. McGOWAN, "Attorney for Plaintiff, "WM. M. STAFFORD, "Attorney for Defendant."
In addition to the foregoing it was agreed that the checks had never been paid.
[1] The question presented to this court for determination is whether the circumstances detailed in the agreed statement of facts constituted a discharge of the obligation evidenced by the two checks. Each check contained a statement of the purposes for which it was drawn and a reference to its being a part of the purchase price of the property involved in the negotiations between the plaintiff and James H. Mitchell.
On the part of the appellant it is contended that under the circumstances, no action lies for the purchase price of the property referred to, and that the only cause of action would be for the difference between what the plaintiff realized on the subsequent sale, and the price agreed to be paid by James H. Mitchell. As to the hay, there was no subsequent sale, but the entire quantity thereof was consumed by the plaintiff in feeding it to the cattle involved in the transaction, and also to other cattle owned by the plaintiff.
On the part of the plaintiff it is contended that the checks were negotiable instruments, and the fact that the plaintiff had taken possession of the property involved and resold the same, was wholly immaterial; that it was an action for the purchase price under section 3310 of the Civil Code as it then read (which is now sec. 1783, Civ. Code), and that the only defense possible for the defendant would be payment, lack of capacity of the parties, lack of consideration, failure of consideration, inadequacy of consideration, illegality of consideration, fraud or mistake. In making this contention respondent overlooks subdivision 4 of section
It is thus apparent that under the provisions of section
Here, the record shows that the plaintiff repossessed himself of all of the cattle, and sold the same to other parties. A part of the cattle was sold for an advance over *505 the price agreed to be paid by James H. Mitchell, deceased. All of the remainder of the cattle were to be sold, but for what price the record does not disclose. If any presumption could be indulged in in relation thereto, it would be that they were sold for the full price agreed to be paid therefor by the deceased, as there is no claim for damages on account of any depreciation in value.
[2] Contending that the title had passed both as to the cattle and as to the hay, it is insisted by the respondent that this action is governed by section 3310 of the Civil Code as it then read, which is as follows: "The detriment caused by the breach of a buyer's agreement to accept and pay for personal property the title to which is vested in him, is deemed to be the contract price." This section of the code, however, applies only where the seller has not repossessed himself of the property which constitutes the basis of the transaction, or holds the property for the benefit of the buyer and notifies him of the intended sale. Where the property is repossessed by the seller, and by him subsequently sold, an action lies only for the difference between the amount received upon the resale and the amount agreed to be paid by the first buyer. The construction of this section, as we have stated, is very clearly set forth in the case of Phillips v. Stark,
In Levy v. Kahn,
To the same effect is the case of Hamberger-Polhemus Co. v.Lewin,
It likewise seems self-evident to us that the plaintiff, after feeding the hay for which one of the checks was given, is not entitled to recover the purchase price thereof.
In view of these cases and the agreed statement of facts, we think the following quotation which we take from the case ofHunt v. Glassell,
[3] The facts set forth in the agreed statement of facts and under the authorities which we have cited compels the conclusion that the plaintiff is not shown to be entitled to recover for the purchase price under the provisions of section 3310 of the Civil Code, but is entitled to recover, if anything, only such damages as he may have suffered, which damages, not being shown, necessarily leads to a reversal of the judgment so far as it is based upon the two checks. There being no appeal from the judgment awarding the respondent the sum of $480 as the sum of money received by the plaintiff for 24 hogs belonging to the estate of the deceased, it follows that it should be affirmed, with the modification that it cannot be considered as an offset against any claim which the plaintiff may have against the estate of said deceased. To the extent that the judgment so provides, it is reversed, and in so far as the judgment awards the plaintiff recovery upon the two checks mentioned herein, it is also reversed.
Parker, J., pro tem., and Thompson (R.L.), J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on July 25, 1932, and an application by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on August 22, 1932. *508