Abrahams v. Hammel (1919) · DecisionDepot

Abrahams v. Hammel

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

California Court of Appeal Feb 19, 1919 No. Civ. No. 2620.Published

Before: Shaw

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Holding. The court held that the transfer of the automobile was fraudulent and void as to the attaching creditor because it was not accompanied by an immediate delivery and an actual, continued change of possession as required by Section 3440 of the Civil Code. Consequently, the plaintiff acquired no valid title to the property.

Issues

Whether the verdict was justified by the evidence regarding the validity of the transfer of the automobile.
Whether the failure to transfer possession of the automobile rendered the sale fraudulent and void against creditors under Section 3440 of the Civil Code.

Disposition. affirmed

Quotations verified verbatim against the opinion

“the sale and purported transfer to Phillips must, as to the attaching creditor, be deemed fraudulent and void.”

“it follows that at the time Phillips sold the automobile to plaintiff the former had no title thereto, and hence the bill of sale to plaintiff was ineffectual as a transfer of the same.”

Synopsis

The facts are stated in the opinion of the court.

SHAW, J.

Under a writ of attachment, issued in an action wherein F. W. Cole was plaintiff and G. G. Gillette was defendant, W. A. Hammel, as sheriff, levied upon and took possession of a certain automobile, title to which the plaintiff claimed was vested in Gillette. Thereupon plaintiff in this action filed a third-party claim with the sheriff and demanded delivery of possession of the property, which was refused.

This action for conversion followed, and judgment was entered in accordance with the verdict of a jury in favor of defendants.

The appeal is from the judgment and an order of court denying plaintiff’s motion for a new trial.

[12]

The sole contention of appellant, which he presents without incorporating in the record the instructions given the jury, is that the verdict is not justified by the evidence; hence it. is said the court should have granted his motion for a new trial.

[1]

The evidence, in which there is some conflict, tended to show that on October 5, 1912, a conditional sale contract was made by the California Motor Company to Gillette, under which it, reserving the title to the car subject to the making of certain deferred payments thereon, when title was to vest in the vendee, delivered possession thereof to Gillette. On October 24th following, Gillette sold the car and, with the consent of the Motor Company, assigned the contract to J. A. Phillips as purchaser, who assumed the payments specified therein. On March 15, 19Í3, Phillips made the payments in compliance with the contract and received a bill of sale and receipt in full therefor, at which time he,

without having taken the car into his possession,

made an arrangement with Gillette whereby the latter was to retain possession thereof. Thereafter, on August 19, 1913, Phillips executed a lease of the car to Gillette’s wife, but, in so far as disclosed by the evidence, she never acquired or took possession thereof, but the same continued in Gillette. On July 31, 1914, Phillips executed a bill of sale transferring his interest in the automobile to plaintiff, who at the time,

Abrahams v. Hammel

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Synopsis

SHAW, J.

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