Palmer v. Howard

Hayne, C. — The plaintiff delivered to one St. Clair and wife certain personal property, under a writing, of which the following is a copy: —

“ San Francisco, March 26, 1885.

“ D. Parker St. Clair and Wipe, San Diego, Cal.: — Borrowed and received of Palmer and Eey, 405-407 San-some Street, San Francisco, the following articles in good order. If the price set against them is paid, as per memorandum below, the property is then to belong to said borrower; otherwise it remains the property of Palmer and Eey. Notes and drafts, or renewals of the same, if given, are not to be considered payment until they are paid. In the mean time the borrower is to keep the property in good order, and agrees to' pay the price as per memorandum below, keep the property sufficiently insured for the benefit of the said Palmer and Eey, depositing the policy of insurance with them, and may use the property free from any other charge.-

“ Said property is not to be removed from lot L, in block thirty-six (36) in the city of San Diego, Cal., without the written consent of Palmer and Eey. Should said borrower fail to meet any of the payments at the time specified, or to keep the property satisfactorily insured or in good order, then Palmer and Eey may take the said articles and dispose of them to the best advantage, ren[295]dering to said borrower all surplus, if any, after paying the price agreed upon and the expenses of removal and sale.”

Then follows a list of the articles, and a specification of the installments of the price, amounting in all to $2,295.45.

The St. Clairs paid but one installment of the price, and did not keep the property insured, but mortgaged the same to the defendant for $925, and subsequently left for parts unknown.

The question is as to the effect of the agreement quoted.

It is settled in this state that even bona fide purchasers from the person to whom personal property is delivered under an executory contract of sale get no valid claim to the property. (Kohler v. Hayes, 41 Cal. 455; Hegler v. Eddy, 53 Cal. 598.) This is in accordance with the great preponderance of authority elsewhere. (Harkness v. Russell, 7 Sup. Ct. Rep. 51.) The reason is, that in such cases the title to the property does not pass, and the maxim, Nemo plus juris, etc., applies.