Della v. Home Bank of Porterville

MARKS, J.

Respondent brought this action to recover the sum of $505.75 from appellants. It is based on a judgment rendered January 24, 1927, against appellant R. A. Shepard, doing business under the name of Shepard Bros, and Shepard Bros. Meat Market. Execution was issued and served on the Home Bank of Porterville and returned unsatisfied.

On and prior to April 20, 1926, the appellant Shepard conducted a meat market in the city of Porterville, California. The business venture was a failure. Besides the account on which the judgment of January 24, 1927, was rendered, he owed respondent $61.20 and owed the appellant bank $3,625 evidenced by three promissory notes. There were also a number of accounts due to other creditors. Shepard was insolvent on and after March 5, 1926.

On March 5, 1926, Shepard gave the appellant bank a bill of sale to twenty head of steers and fifteen head of stock cattle located in a pasture on a ranch lcrsed and occupied by him. On the same day the bank wrote Shepard a letter agreeing to sell the cattle and credit the net proceeds upon his notes. It did not take possession of the cattle. Some were butchered by Shepard and others he sold to a third party. On April 20, 1926, the bank sold the remaining cattle for $1284.94, which money it retained and credited Shepard’s

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notes with $1300 in accordance with a verbal promise made to Shepard so to do.

On March 24, 1926, Shepard gave respondent the following bill of sale: “I have this day sold to A. Della all hides and tallow I have in my hide vat and those that may accumulate until I have paid him (A. Della) the sum of $495.00.”

Della did not take possession of the hides or tallow, but subsequently sold the hides for $284.20. Before this money was paid to Della it was taken under execution by another creditor of Shepard’s and respondent received no part of it.

Just prior to April 14, 1926, a notice of intention to place a chattel mortgage on the furnishings and fixtures in the meat market in favor of one of the creditors, not a party to this action, was recorded in the office of the county recorder of Tulare County. On April 15, 1926, there was recorded in the same office a notice that Shepard had sold to the Home Bank of Porterville all his stock in trade, furniture, furnishings and fixtures in the meat market and fixing the Home Bank of Porterville and 9 o’clock A. M. on April 23, 1926, as the time and place of consummating such sale. A bill of sale transferring to the bank the property described in the notice was acknowledged by Shepard on April 14, 1926, and was recorded on April 16, 1926.