10 P.2d 186 | Cal. Ct. App. | 1932
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *423 The action herein was instituted by plaintiff to recover from defendant Jacobs certain trust funds in the latter's possession, being the proceeds of a sale of personal property transferred to Jacobs by M.M. Lichtenstein and for the purpose of impressing a lien upon and of subjecting to execution sale certain real estate transferred to defendant Jacobs by the owner, M.M. Lichtenstein. From a judgment rendered in favor of plaintiff, defendant Jacobs appeals.
The record presents the following facts: On July 1, 1916, articles of incorporation of the Lichtenstein Company were executed by three incorporators. Among the purposes for *424 which the corporation was stated to be formed was that of buying, selling and dealing in jewelry. The place where the principal business of the corporation would be transacted was stated to be in San Francisco, California. The articles of incorporation were filed in the office of the county clerk of the city and county of San Francisco and in the office of the Secretary of State during the month of July, 1916. They appear also to have been filed in the office of the county clerk of Kern County on September 17, 1921. On September 8, 1921, a resolution was unanimously passed at a regular meeting of the corporation, changing the principal place of business from the city and county of San Francisco to the city of Bakersfield, Kern County. The removal of the place of business of the corporation from San Francisco to Bakersfield evidently took place during the year 1921. At the time the resolution changing the place of business was adopted, M.M. Lichtenstein was the president of the corporation. During the time that the corporation operated in Bakersfield, Lichtenstein was its president and general manager. On May 1, 1924, the plaintiff, Kaye, and M.M. Lichtenstein were indebted to the Security Trust Company of Bakersfield in the sum of $4,000. This indebtedness was evidenced by their joint and several promissory note for the amount specified, made payable to the trust company. On August 13, 1926, Kaye brought suit in the Superior Court of Kern County against M.M. Lichtenstein for the recovery of the amount of the note with interest. The complaint in this action alleged the execution of the note by Kaye and Lichtenstein and further alleged the execution of a contract of indemnity on May 1, 1924, whereby Lichtenstein agreed, in consideration of the transfer to him by Kaye of certain shares of stock in the DeLuxe Onyx Company, to assume and pay all obligations of the DeLuxe Onyx Company, and in particular to pay and discharge the promissory note executed by Kaye and Lichtenstein in favor of the Security Trust Company, and that Kaye had duly performed all conditions required of him under the above-described agreement, but that Lichtenstein had failed and refused to discharge the promissory note made payable to the Security Trust Company as he had agreed to do. A writ of attachment issued in this action and was served upon Henry A. Jacobs, notifying him that all moneys, credits, debts, or other personal *425 property in his possession or under his control belonging to Lichtenstein were attached and levied upon. A second writ of attachment was levied upon certain real property standing in the name of Henry A. Jacobs. M.M. Lichtenstein was duly served with process in the action thus instituted and made no appearance therein. His default was duly entered and on January 28, 1927, judgment was rendered against him in the amount of $4,693.34, together with interest and costs in favor of Kaye. Thereupon a writ of execution issued and was served upon Henry A. Jacobs, together with a written notice that any personal property in his possession or under his control belonging to Lichtenstein was attached and levied upon. In the meantime, and prior to October 6, 1924, M.M. Lichtenstein had become the owner of all stock of the Lichtenstein Company with the exception of two or three shares of stock issued to directors of the corporation to enable them to qualify as directors, and at some time prior to October 6, 1924, Lichtenstein moved the business of the Lichtenstein Company to Hollywood, California, and there conducted a retail jewelry business in the Hotel Christie under the name of the Christie Jewelry Company. On October 6, 1924, M.M. Lichtenstein executed the following instrument:
"Hollywood, Calif., Oct. 6, 1924.
"I hereby assign all interest in my business known as the Christie Jewelry Co., to Henry A. Jacobs, with the understanding that Mr. Jacobs is to act for all the creditors.
"M.M. LICHTENSTEIN, "Pres. CHRISTIE JEWELRY CO."
On November 28, 1924, M.M. Lichtenstein executed deeds by which he conveyed to Henry A. Jacobs two parcels of real estate in Kern County. The deeds were recorded in the office of the county recorder of Kern County. The defendant Jacobs in due time sold the stock of jewelry in the Hollywood store and one parcel of real estate, and from the proceeds paid to creditors of the jewelry business a dividend upon their claims. At the time the action herein was instituted appellant had in his possession from the proceeds thus realized the sum of $1,469.23, and had not disposed of the second parcel of real estate.
[1] The question that first arises on the appeal from the judgment is whether the instrument executed by M.M. *426
Lichtenstein on October 6, 1924, hereinabove set out, operated as an assignment by the Christie Jewelry Company of all of its assets to appellant, Jacobs, for the benefit of its creditors. It will be observed that the instrument was signed by Lichtenstein and that there was appended to his signature the words, "Pres. Christie Jewelry Co." The body of the instrument reads, "I hereby assign all interest in my business known as the Christie Jewelry Co., etc." The language thus used indicates that the signer was attempting to make a personal, individual assignment of his assets for the benefit of his creditors. Manifestly it could not operate as an assignment by a corporation known as the Christie Jewelry Company because, so far as is made to appear, the Christie Jewelry Company had no corporate existence. [2] If, however, the name Christie Jewelry Company was a fictitious name adopted by Lichtenstein, who owned the whole stock of goods and fixtures, the instrument would operate, as its phraseology indicates, as an individual assignment by Lichtenstein. [3]
Nevertheless, appellant contends that as the Lichtenstein Company had a corporate existence and the evidence shows that the business and assets of this corporation of which M.M. Lichtenstein was president and manager were moved to Hollywood, therefore the instrument operated as an assignment by the Lichtenstein Company for the benefit of its creditors. It is difficult to reconcile such a contention with the plain meaning of the language employed in the instrument of assignment. As heretofore noted, the language employed in the body of the instrument is language which indicates an intention on the part of the signer to make an individual assignment. The only language which in any respect indicates a different intention is that which is found in the phrase "known as the Christie Jewelry Co." which occurs in the body of the instrument and the words "Pres. Christie Jewelry Co." which appear underneath the signature appended to the instrument. The phrase "known as the Christie Jewelry Co." obviously modifies the language immediately preceding it and is clearly descriptive of "my business". Equally clear is it that the words "Pres. Christie Jewelry Co." constitute merely descriptive phraseology. Under such circumstances the most that can be said in favor of appellant's contention is that by the use of the language indicated *427
it was left in doubt whether M.M. Lichtenstein intended to make an assignment for the Lichtenstein Company, of which he was president, or whether he intended to make a purely personal assignment for the benefit of creditors, and that resort might be had to parol evidence to determine what his intention really was. (Southern Pac. Co. v. Von Schmidt Dredge Co.,
[5] It is clear that the instrument of October 6, 1924, could not operate as an assignment under the provisions of section
[9] The trial court also found that the transfer of the real property from Lichtenstein to appellant, upon which *430
respondent sought by this action to impress a lien, was made without consideration and that the transfer was accomplished by a deed absolute and unconditional under an oral agreement between appellant and Lichtenstein that appellant should sell the land and use the proceeds obtained from such sale in paying claims of one class of creditors of Lichtenstein pro rata to the exclusion of other creditors and not to his creditors generally, upon condition that each and all of said creditors should release Lichtenstein from further demands, but that none of such conditions were expressed in the deed of conveyance and respondent was not one of the class of creditors for whose benefit the transfer was made. This finding is attacked by appellant on the ground that the evidence shows that the transfer of the real property was made for a good and sufficient consideration and that it was not subject to objection by respondent. The finding is not vulnerable to the attack made upon it. The evidence is ample to sustain the finding. The transfer of the real property to appellant was made by deed absolute in form and unconditional, but upon the parol understanding between Lichtenstein and appellant that the land should be sold and the proceeds distributed ratably among the creditors of the Christie Jewelry Company. Appellant further testified that he agreed with Lichtenstein that in consideration of the execution by the grantor of the deeds conveying the real property he would insist upon all creditors giving him a release of any further demands upon Lichtenstein. It is apparent that the transfer of the real property amounted to an assignment by the grantor of all interest that he had in the real property and that it was an assignment for the benefit of one class of the grantor's creditors, the mercantile creditors or creditors of the jewelry business, to the exclusion of other creditors. Respondent being excluded from participation in the proceeds to be derived from the sale of the real property and not having assented to the assignment was entitled to object to it and the court properly sustained his objection (Sabichi v. Chase,
[10] One further point remains to be considered. Appellant by his answer raised the issue of laches. While no express finding was made by the court upon the issue it must be assumed in support of the judgment that it was *431
decided adversely to appellant. [11] It is now contended that, as the evidence showed that there was a definite lapse of twenty-two months between the date of the assignment by Lichtenstein to appellant and the institution of the action by respondent to recover from Lichtenstein under the indemnity agreement and still further delay by respondent in directly attacking the assignment to appellant, the court's denial of the claim of laches is not justified. It is perhaps a sufficient answer to this contention to point out that this is a matter which reposes in the sound discretion of the chancellor (10 Cal. Jur., p. 526, sec. 64). Furthermore, while lapse of time is an important element in determining laches it is not conclusive. Delay alone does not constitute laches unless it is accompanied by circumstances from which prejudice may result to the person complaining of it or to some other person. (McGibbon v.Schmidt,
The judgment is affirmed.
Barnard, P.J., and Marks, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on April 30, 1932, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on June 2, 1932. *432