Bennett v. Potter
Before: James
Synopsis
Appeal Taken Too Late—Dismissal.—An appeal from a judgment taken more than six months after its entry is too late, and will be dismissed.
Order Denying New Trial—Review upon Appeal—Sufficiency of Complaint and Findings—Support of Judgment.—The sufficiency of the complaint and of the findings to support the judgment cannot be reviewed or considered upon appeal from an order denying a motion for a new trial. Those questions could only be considered on appeal from the judgment.
Action for Breach of Contract to Sell Personal Property—Title in Vendee—Measure of Damages.—The measure of damages in an action for a breach of contract to sell personal property, the title to which has vested in the vendee, for nonpayment therefor, is deemed to be the unpaid contract price.
Id.—Executory Contract to Sell Automobile for Agreed Price—• Offer of Delivery-—-Retention for Purchaser’s Use—Title Passed.—Title is transferred under an executory contract to sell an automobile for an agreed price, where the seller has completed it, prepared it for delivery, and offered it to the buyer, and has stored it for the purchaser’s use, with intent to transfer the title thereto, so that the buyer could at any time have had the full and unrestricted use thereof.
Id.—Election of Vendor—Title and Delivery to Vendee—Improper Evidence of Sale by Vendor Without Notice—Credit on Contract Price.—Where the vendor of the automobile, in an action for a breach of the contract of purchase thereof, elected to treat the title as having passed to the vendee, and alleged and the court found that the automobile had been delivered, according to the contract for the sale thereof, the court erred in admitting evidence, over the objection of the vendee, to show that the vendor had, without notice to the vendee, sold the automobile pending suit, just before the trial, for less than one-half of the contract price, and in crediting the amount thereon, and allowing the recovery of the remainder of the contract price by the vendor from the vendee.
Id.—Value of Automobile in Market Immaterial.—Under the cause of action, relied upon in the complaint for damages for breach of the contract of sale, the value of the automobile in the market was immaterial.
Id.—Sale Under Vendor’s Lien not Effected—Notice Essential.— In order to effect a sale for the enforcement of a vendor’s lien on the automobile, as personal property, it must be sold in the same manner in which pledged property is sold, after notice to the vendee of the time and place of the sale.
Id.—Sale Without Notice a Conversion of the Property.—A sale of the automobile without notice to the vendee amounted to a conversion of the property of the vendee, for which damages might be recovered by the vendee.
JAMES, J.
The complaint in this action contained three counts. At the trial plaintiff elected to proceed upon the third count, which stated a cause of action for breach of contract, consisting in the refusal of defendant to accept and
[185]
pay for a certain automobile purchased by the latter from the plaintiff. Judgment was in favor of plaintiff and against defendant for the sum of $1,775 and interest. Defendant appealed from the judgment and from an order denying her motion for a new trial. The appeal from the judgment was taken too late. Notice of appeal was filed more than seven months after judgment was entered; hence that appeal should be dismissed. (Code Civ. Proc., sec. 939;
Robinson
v.
Eberhart,
148 Cal. 496, [83 Pac. 452].)
The appeal from the order, denying defendant’s motion for a new trial presents for review the matter as to the sufficiency of the evidence to sustain the findings, and the further question as to whether or not the court erred in the admission of certain testimony which was objected to by defendant. The complaint must be treated as sufficiently stating a cause of action, and the findings cannot be examined for the purpose of determining whether or not they support the judgment. Those questions could only be considered on the appeal from the judgment.
(Swift
v.
Occidental M. Co.,
141 Cal. 165, [74 Pac. 700];
Sharp
v.
Bowie,
142 Cal. 467, [76 Pac. 62];
Coburn
v.
California Portland Cement Co.,
144 Cal. 82, [77 Pac.
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