Capitain v. L. A. Wrecking Co.

CARTER, J.

The trial court found that on December 17, 1947, defendants, L. A. Wrecking Company, a partnership, and the partners, the owners of a house situated on a lot in Los Angeles, entered into an agreement to sell the house to plaintiff and move it to Bandini, California, for a total' sum not exceeding $6,500 delivered. A $500 deposit or down payment was made and thereafter on April 2, 1948, a second deposit of $3,000 was made and accepted while the house was still at its original location. The balance of $3,000 was to be paid when the house was placed on the foundation at the new location. Defendants employed the M & M House Moving Company to move the building, which it did on May 3, 1948, and placed it on “sills and blocks,” the property of the mover, at the new location. It was to be lowered to the foundation by the mover. For the purpose of moving, a “top portion” of the top of the building had to be removed. On May 10, 1948, seven days after the moving, the house was destroyed by fire. At that time the portion of the roof had not been replaced, defendants had placed tarpaulins on the house to protect it, tools and equipment for replacing the roof were in the house, materials for the job were present at the new location and the house had not been placed upon the foundation. The court concluded that at the time of the fire, defendants had possession and control of the building and plaintiff should recover $3,587.50 — the amount deposited plus sales tax — from defendants and the latter take nothing on its cross-complaint.

Defendants contend that title to the house had passed to plaintiff when it was placed on the blocks and sills, and therefore the risk of loss was upon plaintiff at the time of the fire.

The applicable legal principles are conceded by the parties. With certain exceptions not here pertinent, the risk of loss falls upon the seller if title has not passed, and on the buyer, if it has. (Civ. Code, § 1742.) “(1) Where there is a contract to sell specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. (2) For the purpose of ascertaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties,

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usages of trade and the circumstances of the case.” (Civ. Code, § 1738.) “Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer. . . . Rule 5. If the contract to sell requires the seller to deliver the goods to the buyer, or at a particular place, or to pay the freight or cost of transportation to the buyer, or to a particular place, the property, does not pass until the goods have been delivered to the buyer or reached the place agreed upon.” (Civ. Code, § 1739.) It remains therefore to ascertain whether the evidence was sufficient to support the conclusion that the risk of loss rested with defendants — sellers.