Clairmonte v. Napier Motor Co. of America

ALLEN, P. J.

Appeal by defendant from a judgment entered against it and in plaintiff's favor.

[266]

The action was • submitted upon an agreed statement of , facts, which may be summarized as follows: The defendant manufacturer had appointed plaintiff its exclusive agent for the sale of motor cars in the district of Los Angeles upon an agreed compensation of twenty per cent discount. Preceding September, 1906, the business had been conducted in the manner following: When plaintiff ordered a car he purchased the same of defendant in his own name and the car was shipped to him personally; the bill of lading was accompanied by a draft drawn by defendant upon plaintiff for the list price of the car less twenty per cent. In September, 1906, a lady who had been solicited by plaintiff to buy a car, -was given a letter of introduction by plaintiff to defendant and this customer purchased a car directly from defendant, paying defendant a third in cash and agreeing to pay the balance upon delivery of ear at Los Angeles. Defendant accordingly shipped the car to the purchaser and through a Boston bank drew for the unpaid balance. The bank purchased the draft • in good faith and credited defendant with the face thereof and honored defendant’s checks until the amount was exhausted. The bank forwarded the draft so purchased to its correspondent in Los Angeles. The purchaser paid to the correspondent the amount of the draft; whereupon plaintiff, who had before that time commenced an action against defendant to recover twenty per cent commission upon the sale of the machine, attached the money in the hands of the correspondent and the Boston bank gave an undertaking for the release of such attachment. Intermediate the sale of the draft and its payment the defendant, upon involuntary proceedings, was adjudged a bankrupt by the district court of the United States for the district of Massachusetts. While this adjudication was had before the commencement of plaintiff’s action, he had no actual knowledge thereof. After the adjudication in bankruptcy a composition was effected, signed by a majority of the creditors, to which plaintiff was not a party, under the terms of which thirty-three and one-third per cent of all claims were by the creditors agreed to be received in satisfaction of their demands. This composition was confirmed by the court and the per cent due plaintiff was deposited in the registry of the court, of which fact plaintiff received notice. Afterward, in June, 1908, plaintiff made