Marx v. McKinney

SCHAUER, J.

Plaintiff herein sued upon two alternative causes of action:

1. For money received prior to November 1, 1938, by defendant and sole appellant Fred P. Glick, “individually and doing business as Fabriform Steel Products Co., successor to the Welded Products Co. Inc., . . . for the use and benefit of one, George Karp, the plaintiff’s assignor.”

2. For money claimed to have been owing by defendant-appellant Glick to a judgment debtor of plaintiff, one R. L. McKinney (also named as a defendant herein), at the time of levy upon appellant, under the provisions of section 542, subdivision 6, and sections 543 and 688 of the Code of Civil Procedure, of a writ of execution issued upon plaintiff’s judgment against McKinney.

The trial court, sitting without a jury, awarded judgment to plaintiff and against appellant Glick in the sum of $3,036, together with interest thereon at seven per cent per anrmm from May 20, 1940. Appellant makes various attacks upon the judgment, directing them at each of the two causes of action. As to the first of such causes he contends that the evidence sustains neither the finding that prior to November 1, 1938, Glick received the sum of $3,036 for the use and benefit of Karp, nor the finding that Karp assigned to plaintiff such chose in action against Glick. Inasmuch as we con-

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elude that the evidence as augmented before us is sufficient to support the mentioned findings, and therefore the judgment, it is nnnp.cfissa.Ty to discuss the contentions advanced by appellant as to the second cause of action.

Prior to December 21, 1936, Welded Products Co., a California corporation, manufactured and sold to defendant McKinney a number of cleaning machines. McKinney resold the machines to various purchasers under conditional sales contracts, and then assigned such contracts to the Welded Products Co. as collateral security for the balance owing from McKinney to the corporation for the machines. On December 21, 1936, McKinney and Welded Products Co. agreed in writing that as of that date the corporation was holding assigned contracts with a total balance owing on them of $48,-004.32, to secure an indebtedness from McKinney to the corporation of $33,972.83; thus the total unpaid balance on such contracts amounted to some $14,000 more than McKinney then owed the corporation. On September 11, 1937, and as partial security for a promissory note executed by McKinney in favor of George Karp (plaintiff’s alleged assignor, first cause of action), McKinney assigned to Karp “the sum of $3,036 out of monies due me from [the] contracts” held as security by Welded Products Co. The company was immediately notified of the assignment.