Carlson v. Kolb's Bakery

PARKER, J.,

pro

tem.

This is an appeal by plaintiff from a judgment of dismissal entered after the general demurrer of defendants to the complaint of plaintiff had been sustained without leave to amend.

The nature of the claimed cause of action and the grounds of the appeal can be gathered from a detail of the complaint. After the preliminary allegations of incorporation and residence it is alleged:

That on or about June 25, 1929, the defendant Charles R. Warfel was appointed assignee for the benefit of creditors of Rye-Krax Corporation; that on or about July 12, 1929, said Warfel, while acting as assignee, took and received from the plaintiff the sum of $500 as a deposit on a bid for the purchase of certain real estate which had come into the control of said Warfel, assignee, as aforesaid; that thereafter, the said Warfel was unable to complete the transfer of the real estate and that plaintiff obtained a judgment against Warfel, as such assignee, for the sum of • $500 and costs, which judgment has become final; that on or about September 12, 1929, Warfel, acting as assignee, sold and transferred to Kolb’s Bakery the real property involved; that Warfel had not, at the time of the sale to Kolb’s Bakery, or before or after said date, ever filed any bond as provided by section 3467 of the Civil Code; that at no time had Warfel ever filed any inventory, as assignee, setting forth the assets of the estate of his assignor, nor was such inventory ever filed at all; that Warfel has no other assets of the estate of his assignor. Plaintiff prays judgment that the sale from Warfel as assignee to

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Kolb’s Bakery be canceled and set aside; that the said Kolb’s Bakery execute sufficient instruments to re-invest the title to the property in Warfel, as assignee, and that Warfel be enjoined from further disposing of the property until the provisions of law governing assignments for the benefit of creditors have been complied with, being title three, part two of division four of the Civil Code.

The defendant demurred on the general ground that the complaint did not state a cause of action. As noted, the demurrers were sustained, without leave to amend, and judgment followed.