Cocores v. Assimopoulos

California Supreme Court Jul 10, 1935 No. S. F. 15115Published

Before: Shenk

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Holding. The court held that in a conditional sale contract, the risk of loss for property destroyed without fault of either party falls upon the title holder, and that the trial court correctly awarded costs to the defendant who prevailed on his cross-complaint.

Issues

Whether the trial court correctly construed the conditional sales contract regarding the risk of loss for destroyed property.
Whether the trial court erred in its findings regarding the ownership of property and the rights of the assignee.
Whether the trial court properly awarded costs to the defendant on his cross-complaint.

Disposition. affirmed

Quotations verified verbatim against the opinion

“in the absence of any special agreement between the parties, and here there is none, as to who should bear the loss in the event of destruction of the goods without the fault of either party, the loss must fall upon the person, here the plaintiff, in whom title was vested.”

“the court correctly construed and applied the provisions of the contract.”

SHENK, J.

The record presents an appeal by the plaintiff and William J. Emig, as Sheriff of Santa Clara County, from a judgment against them as cross-defendants after a trial of the issues raised by a complaint and a cross-complaint in claim and delivery.

In October, 1924, the plaintiff and the defendant Helen Assimopoulos entered into a written contract under which the latter agreed to buy the lease, stock in trade, furniture, fixtures, equipment and good will of the Elite confectionery store owned by the plaintiff and located in Gilroy. The contract contained a detailed list of the articles and stock sold. The sale price was $5,500, payable in monthly instalments during a period of three years beginning January 1, 1925. It was provided that title to all of the property should remain in the plaintiff until the full purchase price with interest should be paid. The buyer agreed to take proper care of the property and keep the machinery in a good state of repair, but there was no agreement that she would replace or restore lost or destroyed articles, or any stock in trade or supplies removed in the course of business or that she carry insurance on any of the property involved.

The defendant Helen immediately went into possession of the store and business and conducted it until December 31, 1927. At that time she was in arrears on the instalments and informed the plaintiff that the business did not warrant her continuing under the contract; that she desired the plaintiff to retake possession of the store as it was, with anything added thereto, and that she be released from the contract. The plaintiff requested the defendant Anthony to take a transfer of the business from Helen and conduct it on his own

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account, to which Anthony consented. A transfer from Helen to Anthony was made on December 31, 1927. Up to that date $3,050 had been paid to the plaintiff on account of principal and interest, and after that date the defendant Anthony paid the sum of $350 thereon.

On August 21, 1929, a fire occurred in the rear part of the premises and destroyed a considerable portion of the equipment, machinery and supplies, which was replaced by the defendant Anthony from funds collected under the provisions of insurance policies theretofore taken out by him.

Cocores v. Assimopoulos

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SHENK, J.

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