Jensen v. Carlenzoli

KERRIGAN, J.

This was a suit in intervention brought by the plaintiff against the defendants to compel them to interplead and litigate their several claims to the sum of $1,250, which had been deposited by defendant and appellant Pete Matteri with the plaintiff as a payment on account of the purchase price of certain personal property sold to him by defendants and respondents Joe Carlenzoli and Frank Cavallero. Answers and cross-complaints were filed by the respective claimants, and the cause went to trial, .and resulted in judgment that the amount of said deposit be paid over to the above-named respondents. Pete Matteri appeals from said judgment.

On or about the twenty-eighth day of July, 1920, Pete Matteri agreed to buy from Carlenzoli and Cavallero their dairy business located in Marin Count3r, together with the unexpired term of their lease on the ranch upon which the business was conducted, for the price of $12,500. Of that amount $1,250 was paid to the plaintiff, as the agent of the respondents, on account of the agreed price, of which the balance was to be paid when the lessor of the said premises should consent to the assignment of its unexpired term from the respondents to the appellant. On August 1st Matteri, with the permission of the respondents, took possession of the personal property and premises. On the following day the respondents, having obtained their lessor’s consent, duly assigned said lease to Matteri, who thereupon applied to a bank for a loan, the purpose of which was to enable him to complete the purchase of said property. The bank declined to make the requested loan unless Matteri should secure a five years’ extension of said lease. Accordingly Matteri negotiated for and secured such extension upon what he concluded were satisfactory terms, although at a slight increase in rental therefor. Subsequently, and about a week after Matteri had taken possession of the dairy, he repudiated the transaction, abandoned the premises, and .demanded the return of the $1,250. For the pur

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pose of protecting and preserving the property the respondents took possession of the dairy, and claim that since that time they have conducted it for and on account of Matteri. At all times since the making of their agreement with Matteri they have been and are now ready and willing to make and deliver to him a good and sufficient bill of sale of said personal property.