Chucovich v. San Francisco Securities Corp.

[701]

TYLER, P. J.

This is an action in claim and delivery. Plaintiff had judgment and defendant, San Francisco Securities Corporation, appeals.

The appellant (hereafter referred to as the Securities Company) was engaged in the business of loaning money to automobile dealers upon conditional sales contracts, the payment of which was guaranteed by the dealers. On the twenty-first day of January, 1920, the Knox-Mundorff Company (hereafter referred to as the Knox Company) was a retail dealer in automobiles in Fresno, and at that time was the. owner and in possession of a certain Fageol truck. On the last-mentioned date it entered into a contract of conditional sale of this truck with one Willard Brooks for the sum of $3,600, $1,200 of which was paid by Brooks at the time the contract was entered into, and he agreed to pay the balance in installments at different times thereafter. Among other things, the contract provided that should Brooks make default in any payment or violate other provisions of the contract, the Knox Company might at its option, without previous notice or demand, retake possession of the property, and that the contract should be at an end and all rights of the purchaser terminate.

The day after this transaction was had this company assigned all its benefits in the contract to the defendant Securities Company, and guaranteed the amount due thereunder, which was the sum of $2,400. Several days later Brooks took delivery of the truck. On March 11, 1920, the Securities Company wrote to the Knox Company that Brooks was delinquent in his February payment, and that another installment would be due March 15, 1920. The company advised Knox that if payment was not received promptly on this last-named date it would take the necessary steps to repossess the truck and turn the same back to the Knox Company under its arrangement and have it close the account. No further payments having been made by Brooks the Knox Company, acting under instructions from the Securities Company, repossessed itself of the truck and made arrangements for its resale. At no time during these transactions did the Securities Company ever have or receive actual or physical possession of the automobile.

In October, 1920, Knox succeeded to all interest in the Knox-Mundorff Company and thereafter conducted the busi