Katzenbach & Bullock Co. v. Breslauer

LANGDON, P. J.

This is an appeal by the defendant from a judgment against him in an action to recover damages for the breach of a contract by defendant for the purchase of a carload of caustic soda. The findings show that the plaintiff is a New Jersey corporation and filed a copy of its articles of incorporation in the office of the Secretary of State of the state of California, and a certified copy thereof in the office of the county clerk of San Francisco; that the contract sued upon was entered into between the parties for the purchase and sale of a carload of caustic soda at an agreed price, f. o. b. San

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Francisco, payable cash on arrival; that upon the arrival of the goods, plaintiff notified defendant and defendant thereupon refused to accept or pay for said goods; that the plaintiff, because of such refusal was obliged to warehouse the goods and to sell them in the nearest available market, which was at San Francisco, and that said caustic soda was sold at the best price obtainable in said market.

[1]

Some point was made by appellant that it had been mutually agreed between the parties that the contract should be canceled, abandoned, and rescinded. The trial -court found, upon conflicting evidence, that it was not so agreed and that said contract was never canceled, abandoned, and rescinded. We are, therefore, not at liberty to go into this question of fact.

[2]

The only other point made by the appellant is that the plaintiff did not have the right to sell the caustic soda without giving notice of sale to the defendant. Appellant contends that the present case falls within the provisions of sections 3002 and 3049 of the Civil Code, and that notice of sale was necessary. Section 3002 deals with pledged property, .providing that notice shall be given to the pledgor of the time and place of sale. Section 3049 provides that one who sells personal property has a special lien thereon, dependent on possession, for its price, and may enforce such lien as in the case of a pledge. It is admitted by respondent that if the title to this caustic soda had passed to the defendant, the plaintiff would have had a lien thereon for its price and would have been bound to give notice of the time and place of sale as in the case of a pledge.