Madison v. Weyl-Zuckerman & Co. (1920) · DecisionDepot

Madison v. Weyl-Zuckerman & Co.

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Jun 25, 1920 No. Civ. No. 2801.Published

Before: Shaw

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Holding. The court held that a vendor of personal property, where title has already vested in the vendee, cannot enforce a lien by selling the property at a private sale without notice; such a sale must be conducted as a public auction in accordance with the requirements for a pledgee's sale.

Issues

Whether a vendor who retains possession of goods after title has passed to the vendee may sell those goods at a private sale to recover the purchase price.
Whether a vendor's unauthorized private sale of goods to which the vendee holds title constitutes a rescission of the contract.

Disposition. reversed

Quotations verified verbatim against the opinion

“Plaintiff had no right to enforce his lien by selling the defendant’s property at private sale without notice”

“the vendor of personal property which the vendee has wrongfully refused to accept and pay for may, under section 3049 of the Civil Code, sell the property and bind the vendee by the result of the sale only where the sale is made in the manner prescribed by section 3005. of the Civil Code for the sale of property by a pledgee.”

Synopsis

The facts are stated in the opinion of the court.

SHAW, J.

This action, as shown by the complaint, was to recover damages for the defendant’s alleged breach of a contract.

In accordance with the verdict ■ of the jury which tried the case, judgment was entered for plaintiff:, from which defendant appeals.

[1]

On June 19, 1917, at which time plaintiff had in the ground a crop of potatoes then ready for harvesting, he and defendant entered into a written contract as follows:

“Weyl-Zuckerman & Co., a corporation, purchases, and Chas. Madison sells the following product, to be sound, merchantable, of quality as follows on arrival at Porter-ville, to wit: 600 sks. Early Rose Potatoes—free from scab and fork holes.

“If any thereof is not of specified quality, buyer may, at its option, restore title of such part to seller and return same, expense of sorting and returning to be borne by seller. Said product is located as follows: 4% West of Porterville, Owner and Grower—Chas. Madison and is hereby identified as the subject matter of this sale, and the title thereto is hereby transferred and delivery thereof is hereby made by seller to buyer. Said product shall henceforth be deemed, in the possession of buyer, and seller shall, at his expense, and as agent of buyer, transport and load it in cars at Porterville as follows: to be delivered on or before June 30, 1917.”

[310]

Analyzing this contract, it appears therefrom that plaintiff sold the potatoes so grown to defendant, and by express terms of the contract it was vested with complete title thereto, which plaintiff, as agent of such owner, was to haul and load upon cars at Porterville, at which time the balance of the purchase price was to be paid. In making the sale plaintiff warranted that the potatoes sold, consisting of six hundred sacks and weighing approximately sixty-five thousand pounds, should, upon delivery, be sound and merchantable, free from scab and fork holes; and, in addition to any rights accruing'to defendant to recover damages for breach of the warranty, defendant in lieu thereof, at its option, was given the right, at plaintiff’s expense for re-sorting and shipping, to transfer back to him the title to such part thereof as did not measure up to the warranty. In other words, the transaction

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No further communication was had between the parties until July 2d, when plaintiff, recognizing that by the terms of the contract title to the potatoes had vested in defendant, wired it as follows: “Under contract dated June 19th I now have in my possession sixty-five thousand pounds of potatoes belonging to you wire instructions as to delivery immediately or I will sell the potatoes for your account in order to prevent loss”; to which defendant replied: “You are not holding any potatoes for this company as potatoes purchased were rejected by Engelhardt account not up contract grade they contained small cut sunburned and unmerchantable stock therefore we rejected.” On July 5th plaintiff, by his attorney, wired defendant as follows: “I am still holding your potatoes you did not reject potatoes on account of scab or fork holes demand balance of purchase price. Potatoes are all good merchantable potatoes and not sun-burnt your only reason for. rejecting is fall of purchase price will sell potatoes and hold you for all damages unless you want to come through. ’ ’ Thereafter plaintiff, at private sale and without further notice to defendant, sold the potatoes to other parties at a price much less than the balance of the purchase price which defendant had obligated itself to pay. The evidence received on the part of plaintiff, and as found by the jury, showed that in quality the potatoes complied with his warranty and, since by reason of defendant’s notice that it would not accept them, he was excused from making delivery thereof, the contract imposed upon defendant the obligation to pay the price in consideration of which title was vested in it. Plaintiff, however, did not stand upon the terms of the contract and insist upon payment of the balance of the purchase price of the goods, which was the detriment caused by defendant’s breach of the agreement. (Sec. 33.10, Civ. Code.) On the contrary, when defendant, by its act in the nature of a rescission, refused to accept performance of the contract on plaintiff’s part, he by his act in exercising the rights of

Madison v. Weyl-Zuckerman & Co.

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Synopsis

SHAW, J.

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THE COURT.

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