Habenicht v. Lissak
Before: Foote
Synopsis
Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial.
The action was brought for breach of the following written contract of sale, the claim for which was assigned by Hughes & Co. to the plaintiff:—
“San Francisco, 316 California Street, “June 22, 1881.
“We have this day bought from Messrs. Hughes & Co., on account of Mr. A. H. Lissak, Jr., seven hundred and twenty thousand (720,000) Liverpool return grain sacks, at six and one half cents (6£ cts.) each, cash on delivery, in United States gold coin, in parcels as required, between now and 1st of November next. Allowance for sea damage and chafage received on above sacks to be turned over to purchaser, who agrees to pay Rogers, Meyer, & Co. a margin of i c. per bag on signing of this contract.
“ White and Lissak, Brokers.
“Approved: A. H. Lissak.”
The sacks thus purchased were the remainder of a lot of 748,000 sacks which had been previously purchased by Hughes & Co. from Rogers, Meyer, & Co., and were held by the latter firm in pledge for payment of the balanee of the purchase-money, amounting to forty thousand dollars. It was arranged that Rogers, Meyer, & Co. should deliver the bags to the defendant upon his making payment to them of the price agreed upon between him and Hughes & Co. The assignment to plaintiff was objected to when offered in evidence, upon the ground that Hughes & Co. had no interest in the goods which was capable of transfer, and that the title was in Rogers, Meyer, & Co. The defendant also moved for a nonsuit upon the same ground, and upon other grounds, among which were the following: That any cause of action in favor of Hughes & Co. was one in which Rogers, Meyer, & Co. had a joint interest; that no assignment had been made by them to plaintiff; that the complaint showed no cause of action in favor of the plaintiff; that under the complaint the transactions between Hughes & Co. and Rogers, Meyer, & Co. were res inter alios acta and immaterial, and that the liability of defendant on the contract could not be affected thereby; that the complaint does not aver that a reasonable time was allowed for performance of the contract before the goods were sold by Rogers, Meyer, & Co.; that Hughes & Co. were neither able nor willing to perform the contract of sale on their part; that the title and possession of the goods never passed to Hughes & Co.; and that the contract of sale by the latter was nudum pactum. The further facts are stated in the opinion.
Foote, C. This is an action for a breach of contract upon sale of a large number of bags. They were sold to the defendant by Hughes & Co., and were to be delivered by Rogers, Meyer, & Co., who held them in pledge for a debt due to them from Hughes & Co. The claim of Hughes & Co. was assigned by them to the plaintiff.
The defendant did not pay for the bags as he agreed to do, and they were sold at auction by the firm who held them in pledge. The price they brought was credited upon the debt which Hughes & Co. owed to Rogers, Meyer, & Co., and became a payment pro tcmto to Hughes & Co., and this suit was instituted to recover from the defendant the difference between the price he had agreed to pay Hughes & Co. for the bags, less the amount he had paid them, and the amount of money which they brought at auction.
The action appears to have been brought under section 3311 of the Civil Code, which reacls as follows:—
“The detriment caused by the breach of a buyer’s [144]agreement to accept and pay for personal property, the title to which is not vested in him, is deemed to be:—
“1. If the property has been resold, pursuant to section 3049, the excess, if any, of the amount due from the buyer, under the contract over the net proceeds of the resale.”
In this instance the- property pledged was sold by the pledgee to reimburse himself for the purchase price, and the claim of Hughes & Co. was assigned in writing to the plaintiff, Habenicht.
All the steps necessary under .the statutes to make a legal and fair sale of the property held in pledge were duly taken, and no unfairness appears in the sale.
The plaintiff had judgment as prayed for, and from that, and an order refusing a new trial, the defendant has appealed.
The facts of the ease seem to be, that the bags were originally sold by Rogers, Meyer, & Co. to Hughes & Co., under a certain written contract. They did not pay for them at once, but did inspect, recei\\re, and accept them in such a way as to make the delivery to them valid, and they then allowed the bags to remain in pledge with Rogers, Meyer, & Co., to be given up to them by the latter, as they should pay for them. Thereafter Hughes & Co. did make payments to Rogers, Meyer, & Co., on account of their debt due for the bags, Hughes & Co. being the owners of the bags, although they had transferred their possession to Rogers, Meyer, & Co. in pledge.
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