Vail v. Nichibei Bussan Co.

LANGDON, P. J.

This is an appeal by the plaintiff from a judgment against him in an action in which he sought to

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have certain transfers of personal property declared void and the property subjected to execution in satisfaction of a judgment obtained upon August 20, 1921, against the defendant S. Tatsuno for over two thousand dollars upon a promissory note dated September 29, 1920.

The complaint alleged that on September 28, 1917, S. Tatsuno was the owner and in possession of certain personal property consisting of a stock of merchandise in a dry-goods store in San Francisco, California; that about October 15, 1920, S. Tatsuno transferred this personal property to Tsuyo Tatsuno, intending thereby to delay, hinder, and defraud the creditors of S. Tatsuno and subsequent to November 1, 1920, Tsuyo Tatsuno transferred the property to S. Tatsuno, T. Tsuchiya, M. Uehiyama, N. Yokiyawa, and Tsuyo Tatsuno, intending thereby to hinder, delay, and defraud the creditors of S. Tatsuno, and that on December 1, 1920, the five persons last named, as co-owners, transferred the property to Nichibei Bussan Company, a corporation, intending to delay, hinder, and defraud the creditors of S. Tatsuno; that the Nichibei Bussan Company had notice of the intended fraud upon the plaintiff as a creditor of S. Tatsuno.

For a second cause of action, the plaintiff added to the allegations contained in the first count the following: That on September 28, 1920, and prior thereto, S. Tatsuno was the owner of and in possession of the merchandise in dispute and has ever since remained and now is in possession and control of said property and in addition thereto the bank account carried in the name of Nichibei Bussan Company; that S. Tatsuno is manager of and in control of the Nichibei Bussan Company.

The trial court found, specifically, that all of the allegations of the complaint were untrue and found the facts to be: That on or about December 1,1920, the defendants S. Tatsuno, T. Tsuchiya, M. Uehiyama, and N. Yokoyawa, as copartners and co-owners were in possession of the store and merchandise mentioned in plaintiff’s complaint; that at said date the said copartners transferred said property to the defendant Nichibei Bussan Company, a corporation; that said transfer was made in good faith and without any intent to hinder, delay, or defraud any creditor of S. Tatsuno and that said transfer was accompanied by an immediate