Leist v. Dierssen

HARRISON, P. J.

Appeal from a judgment against the defendants for the value of certain personal property sold and delivered to them.

March 2, 1902, F. Siebrecht was the proprietor of, and engaged in conducting the business of a restaurant and bakery in San Francisco, and was also the owner of a leasehold interest in the premises upon which the business was being conducted. He was at that time heavily indebted, and a few days before had made an assignment to the plaintiff Deist of the restaurant and the propery connected therewith, and also an assignment to him of the said leasehold interest. These assignments were made merely by way of security for his creditors, and he. continued to remain in the possession of the property and to carry on the business thereof. Deist thereafter, acting in behalf of his creditors and with his approval, had certain negotiations with the defendants herein for the sale

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to them o£ the said business, together with its goodwill and the said leasehold interest. While these negotiations were going on all of the parties thereto became anxious lest the creditors of Siebrecht should levy an attachment upon the property and prevent its sale to the defendants, and on March 2d Siebrecht executed and delivered to the defendants a bill of sale of the restaurant and restaurant business, together with the goodwill thereof, and all the personal property contained therein and used in connection therewith, and thereupon gave them the possession of the same, which they still retain. The bill of sale expresses as the consideration therefor the sum of $10, but no valuation of the property or price for the sale was agreed upon between the parties. On the next day, when the defendants went to the place, the men who had been employed by Siebrecht expressed themselves as dissatisfied at not receiving their pay, and the place was closed to the public. March 5th Siebrecht filed his petition in bankruptcy, and on March 21st Leist was appointed by the court trustee of his estate.

At the trial herein the superior court found:

‘ ‘ That on the 2d day of March, 1902, one F. Siebrecht was the owner of, in the possession of and conducting and managing the business commonly known as Engleberg’s Bakery and Restaurant, at and in the premises Nos. 416 and 418 Kearny street in the City and County of San Francisco, together with the leasehold interest of the aforesaid premises, and the furniture contained in said premises and the goodwill of said business.