Fairmont Creamery Co. v. Los Angeles Ice & Cold Storage Co.

CONREY, P. J.

Action for conversion. Judgment was rendered in favor of the plaintiff and the defendant has appealed from the judgment.

As shown by the evidence, it appears that on the seventeenth day of June, 1913, one Fred F. Lambourn was engaged in business at Los Angeles as a broker selling merchandise on behalf of consignors, and also as a dealer in merchandise on his own account. He had been in business for several years, and so continued until the fourth day of August, 1913, when he was adjudged bankrupt. The plaintiff was engaged in the produce business at Omaha, Nebraska, and had been doing business with Lambourn as broker since April, 1911.

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On June 5, 1913, Lambourn telegraphed to plaintiff that he had sold a car of eggs. The telegram was as follows: “Sold car candled current receipts fifty-three and over small dealers eighteen cents track. Wire car number and when can ship.” On June 7, 1913, the plaintiff shipped the carload of eggs thus ordered and made the consignment directly to and in the name of Lambourn. The car arrived at Los Angeles on June 17th.

When the merchandise was shipped from Omaha a bill of lading therefor, showing the shipment from plaintiff to Lambourn, was received by plaintiff from the railroad company and was mailed by the plaintiff to Lambourn. According to the testimony of plaintiff’s sales manager, this was done that Lambourn “might obtain possession of the eggs for the purpose of making delivery to the various parties to whom he had made sale as our broker.” At the same time the plaintiff forwarded, through the Omaha National Bank to that bank’s correspondent in Los Angeles, a draft on Lambourn directing him to pay to the order of the Omaha National Bank the sum of $2,160 “and charge to account of this company.” The draft was not paid.

On June 17, 1913, Lambourn informed the superintendent of the defendant that he had a car of eggs and wanted a loan on it. The eggs were taken into possession of defendant and placed in its warehouse, and defendant issued to Lambourn a warehouse receipt therefor. Thereupon, and on the same day, the defendant loaned to Lambourn the sum of two thousand three hundred dollars, taking his note for that sum, together with an agreement pledging and depositing with the defendant said carload of eggs as collateral security for the payment of that or any other liability or liabilities of Lambourn to the defendant, “due or to become due or that may be hereafter contracted.” At all times mentioned in this opinion Lambourn was indebted to the defendant in an aggregate amount much exceeding the value of the property claimed by the plaintiff in this action. The evidence does not show when this indebtedness, other than the two thousand three hundred dollar loan, was incurred, except that defendant had been making loans to Lambourn for about two years, and on August 4, 1913, he owed it ninety thousand dollars. In making that loan of June 17th the defendant made no special inquiry as to ownership of the merchandise, and