Jeffery v. Volberg

[817]

WARNE, J. pro tem.

*

This is an appeal from a money judfnt entered in an action brought to recover the price of ¿ck of electrical fixtures, appliances and materials sold by pondent to appellants.

,the time of the sale the stock was located, displayed and offd for sale in the ordinary course of business in a paint str operated by respondent’s sister and brother-in-law. As a edition to obtaining a lease of a storeroom in the same b-ding in which the paint store was located appellants were retired by the owner-lessors to purchase respondent’s stock i>rade. This the appellants agreed to do and the stock was si to appellants at the wholesale price thereof. The stock is not then formally inventoried but appellants and respond-.t checked off the items against the wholesale invoices and, ícept for some light fixtures and two TV sets, the stock was aoved into that portion of the building which appellants had .eased. A few days thereafter, appellants informed respondent that they did not want the stock as they had been advised that they could not get good title thereto unless respondent recorded and published notice of the intended sale as required by the so-called “bulk sales law” (Civ. Code, § 3440.1). This respondent refused to do. Appellants then refused to go ahead with the “deal” or pay for the stock and respondent brought this action to recover the price thereof. Judgment was for respondent and this appeal followed.

We shall first consider appellants’ contention that respondent has misconceived his cause of action.

It is appellants’ position that respondent could only bring an action for damages and not one for the agreed selling price since it cannot be ascertained what stock was delivered. Such is not the case. Although appellants did not take physical possession of the light fixtures and the two TV sets, it was upon appellants’ request and solely for their benefit and convenience that those items were left in the paint store operated by respondent’s sister and brother-in-law and in which establishment respondent had no interest. The balance of the items checked off against the wholesale invoices were delivered to the premises leased and occupied by the appellants. In fact, the record shows that even before such checking, appellants had appropriated some of the stock to their own use. Appellants actively participated in the checking and moving of the stock and in the absence of proof of some