California Winemakers' Corp. v. Sciaroni

COOPER, C.

Plaintiff recovered judgment against appellant for the sum of $994.62, and this appeal is from the judgment, on the judgment-roll and a hill of exceptions. The case was submitted in the court below upon an agreed statement of facts, which facts, so far as material, are as follows: On the twenty-fourth day of February, 1897, appellant, by bill of sale, transferred to plaintiff “about 46,500 gallons of wine, being all wines made and to be made by me or us in 1896, in the cellar of Frank Sciaroni at St. Helena,” the wines being further described as dry red wines, 36,000 gallons ;. dry white wines, 3,500 gallons; fortified wines, 7,000 gallons. The bill of sale was duly acknowledged and recorded. At the time of the transfer, appellant was indebted to the Carver National Bank of St. Helena upon a promissory note for $5,000, secured by a mortgage upon the said wines, and he was also indebted, to plaintiff in the sum of $2,500. He gave plaintiff a written order, requesting it to make payments on account of the wine so transferred,' to the Carver National Bank of St. Helena, after deducting the $2,500 due to plaintiff. Plaintiff was notified of said order by said Carver National Bank, and accepted the same, and agreed to pay the money as therein directed and requested by appellant. The wines were to be kept stored by appellant, and delivered by him from time to time as directed

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by plaintiff, and plaintiff agreed to pay for the same from time to time, as sales were made, the average price received by it after deducting charges and expenses. About March 6, 1897, the Carver National Bank discharged and released of record its said mortgage, without the knowledge or express consent of appellant. On August 24, 1897, appellant wrote to plaintiff as to shipping the wines, or a portion thereof, to plaintiff’s warehouse, and asking as to when he could ship them. Plaintiff replied, through its secretary, by letter of date August 25, 1897, directing a portion of the wines to be shipped to it, and in the letter it was said: “We are not prepared at the present time to take the sweet wines into our cellar. If you desire to do so,-you are at liberty to sell the 7,000 gallons of sweet wine independent of the corporation, ánd realize on it, the proceeds going direct to you. This is a dry-wine corporation, and we do not exercise any control over sweet wines; if, however, you have no facilities for disposing of the wine, if you will send us samples and name a price you will be willing to take for the same, we will endeavor to sell it for you, paying the proceeds to you when the wine is paid for.” At the time the said letter was written none of the other officers or directors of plaintiff knew anything as to its being written, and the secretary who wrote the letter had forgotten about the order and its acceptance, and the letter was written under a mistake of the facts. After receipt of the said letter, by its authority, and not otherwise, appellant sold the sweet wines for $1,064.65 and used the money in his business. Thereafter, plaintiff was notified of the sale by the Carver National Bank, and required to account for and pay over to said bank the proceeds of the sale of said sweet wines. Plaintiff thereupon demanded of the appellant the proceeds from the sale of said sweet wine, but appellant refused, and still refuses, to pay the same to plaintiff or to said Carver National Bank, but claimed, and still claims, the right to retain the same under the authorization of the said letter. Thereafter, the plaintiff, upon the demand of the Carver National Bank, and without the consent of the appellant, paid to said bank the sum of $994.62, which sum was by said bank indorsed upon the