Anglo-California Trust Co. v. Pacific Acceptance Corp.

TYLER, P. J.

This is an appeal by defendant corporation from a judgment in the sum of $856.69. The action arose out of the sale of a certain automobile upon a conditional sales contract, and it involves the rights of the parties to the proceeds thereof.

The facts are substantially as follows: On the twenty-fifth day of August, 1919, the Haynes Motor Sales Company

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and Philip S. Cole Incorporated, automobile dealers in San Francisco, made and entered into a contract for the conditional sale of an “Oldsmobile” automobile with one A. A. Leppel, an automobile dealer of Oakland, for the purchase price of $1,050. The contract embodied the ordinary conditional sales agreement which reserved title in the seller until completion of the payments therein provided to be made. Authority was given to Leppel to sell the automobile, the second paragraph of the contract providing as follows: “Said purchaser hereby acknowledges receipt from said seller of said automobile in good condition, and agrees not to permit the same to be attached nor to create or permit to be created any lien, encumbrance or adverse claim of any character against the same for storage, repairs or otherwise, nor to permit the same to be removed from his possession ; provided, however, that it is understood that said purchaser may sell said automobile for and on account of and as the representative of said seller for a sum not less than the amount necessary to pay all indebtedness for principal and interest due and to become due by said purchaser to said seller and upon such terms as said seller may determine. Upon any such sale being so made by said purchaser all cash received pursuant thereto and all contracts of sale,, lease, notes or other documents representing or securing the balance of the purchase price shall be immediately delivered, transferred and assigned to said seller, who shall thereafter collect all payments on account of said automobile to be made thereafter until the entire indebtedness, including principal and interest hereunder, is paid.”

After the execution of the contract Leppel took possession of the automobile, and about a week later transferred it to one H. F. Nyberg for the sum of $1,255.03. Nyberg paid Leppel $428.34 in cash, leaving a balance of $856.69, the amount sued for herein. This transaction was also made under a conditional sales agreement executed between Leppel and Nyberg by the terms of which the car was delivered to the purchaser Nyberg, Leppel retaining title in himself until the balance due was paid in installments as provided for. The contract contained no reference of any kind to the provisions of the agreement under which Leppel obtained possession of the ear. Prior to the sale by Leppel of the machine in question Leppel had been entrusted by one W. A.