Taggart v. Cal-Linda Packing Co.

VAN DYKE, P. J.

This is an appeal from a judgment refusing to foreclose a chattel mortgage.

Under date of September 1, 1950, a group of seven people

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entered into a contract for the sale to Pasquale Perrero and Alma Eobba of certain real property upon which there was situated a cannery. - In addition to the real property, the group agreed to sell certain personal property consisting of cannery equipment. The buyers agreed to purchase and install in the cannery premises additional cannery equipment. Concerning this additonal machinery and equipment, the contract provided as follows: “It is understood and agreed that this additional property shall be covered by this Agreement, and shall be treated as the other items of personal property hereinabove set forth so that said items of personal property shall be held by Sellers as security for the payment of the obligation due them from the Buyers herein.” The buyers further agreed that if they breached the agreement, they would redeliver possession of the real property and of all the personal property either upon the premises at the time of sale or which they had under the terms of their contract placed thereon; that the title to the personalty covered by the contract and all personal property placed thereon by the buyers or obtained from the sellers during the existence of the contract should remain in the sellers until the sellers should deliver to the buyers a bill of sale covering the same; and that in the interim the buyers could place no liens thereon. It appears that the buyers did place a large amount of cannery equipment and other personal property on the premises and for a time operated the cannery but had ceased to do so prior to the execution of appellant’s mortgage.

On August 29, 1951, the buyers, together with one Vincent C. Giordano, who in the meantime had become interested with the buyers, executed an instrument called “Assignment of Contract” wherein they assigned “to Lawrence Curtola that certain contract dated September 1, 1950,” (the purchase and sale agreement above discussed), and in addition promised “to sell to Lawrence Curtola the fixtures of the Cal-Linda Cannery” upon which there was an indebtedness of $11,500 which Curtola agreed to assume. As to just what passed under this assignment considerable testimony was taken, but ignoring conflicts the testimony of Mr. Curtola satisfactorily establishes the following: Just before the assignment was made, he entered into negotiations with the cannery property buyers, Mr. Giordano conducting negotiations for Eerrero and Eobba. The three operated the cannery as Cal.-Linda Cannery had gotten into financial difficulties. Some of the property they had placed upon the cannery