Moody v. Newmark & Edwards
Before: Temple
Synopsis
Action upon Accepted Obdbb—Insufficient Complaint — Equity not Shown.—In an action upon an accepted order “to be paid as equity is collected,” from certain wheat in a warehouse, described as sold to a person named, and by the terms of which one-third of the amount collected, after the amount borrowed on the wheat had been paid, was to be paid upon the order until the amount specified therein should be fully paid, a complaint which does not state facts showing the existence of an “equity,” or the amount borrowed, or that the wheat had been pledged as security for any sum, or what the maker of the order had to do with the wheat after it had been sold, or that he had a lien upon it, and does, not directly allege that the price of the wheat was to be collected by the persons accepting the order, is insufficient upon both special and general demurrer.
Id.—Inconsistent Findings—Suppoet of Judgment.—Where it affirmatively appears from the complaint and a portion of the findings that the entire fund which could have existed, applicable to the debt represented by the order, had been paid by the defendants thereupon, but it is elsewhere found that the full purchase price which the defendant should have received would have yielded a much greater sum to the plaintiff than the amount paid, such finding being irreconcilable with the allegations of the complaint and with the other findings, the findings being inconsistent upon an essential fact, cannot support the judgment.
Id.—Sale of Wheat—Chattel Mobtgage—Depbeciation in Value—Loss of Vendobs.—Where the accepted order sued upon was drawn by one of a firm of vendors, who had sold the stored wheat, for his proportion of the surplus price which might be collected by chattel mortgagees of the vendee, above the mortgage debt, interest, charges and costs, and the chattel mortgage provided that if the wheat deteriorated in quality or depreciated in price the vendee would correspondingly reduce the debt or increase the security, and upon failure to do so, the chattel mortgagees might immediately sell the wheat without notice, upon such deterioration and depreciation in fact occurring, the chattel mortgagees might, with the consent of the partner holding the accepted order, take a portion of the wheat in payment of the depreciated value, or it appearing that the wheat was worth no more than the amount of the loan, might, with the consent of such partner, surrender the wheat to the purchaser upon receiving payment or other security; and any resulting loss must fall upon the partnership, and not upon the mortgagees.
TEMPLE, J. This action was brought to recover from New-mark & Edwards, as partners, money alleged to be due upon a certain order drawn upon the firm by one J. S. Robinson. It is alleged that on the twenty-fourth day of September, 1894, J. S. Robinson was indebted to plaintiff in the sum of five hundred and forty-three dollars and nine cents, and on that day drew and delivered to plaintiff his written order or draft, reading as follows:
“Los Angeles, Cal., Sept. 24, 1894.
“To Newmark & Edwards, Los Angeles:
“Gents.—Please pay to A. S. Moody, or order, the sum of five hundred and forty-three & 09-100 dollars—to be paid as equity is collected from wheat now in Puente warehouse sold last May 19th to J. V. Suman, Colton, viz., after the amount borrowed on wheat has been paid, the amount collected over & above such loan, you to pay Mr. A. S. Moody (1-3) one-third of all such amounts until said amount of five hundred and forty-three 09-100 dollars is fully paid. Amount of wheat on hand this day 6,348 sax, 831,325 lbs. J. S. ROBINSON.”
The order was on the same day accepted by Newmark & Edwards.
Before suit was brought there had been paid on the order one hundred and eighty-three dollars and twenty-five cents. At that time there was stored in a certain warehouse a quantity of wheat which had been sold by Robinson to one Suman for eight thousand five hundred and twenty-one dollars and eight cents, and Newmark & Edwards were authorized and empowered by said Robinson, and undertook to collect from Suman the price of said wheat.
It is charged that subsequent to the acceptance of the order Newmark & Edwards permitted Suman to remove all of the wheat, and “received or should have received payment in full of the said purchase price for the same, at or before said removal of said wheat, which said purchase price amounted to more [448]than two thousand, dollars, as equity, as mentioned in said .order or draft, after the amount borrowed on said wheat had been fully paid.” “And it was understood between plaintiff and defendants that the defendants were not to authorize, suffer,, nor permit said Suman to remove said wheat, or any part or portion thereof, unless the purchase price was paid hy said Suman at or before the time of such removal.”
The “equity” which was to be collected is not explained,, except in the recital above quoted, as “equity” after the amount, borrowed had been repaid. There is no allegation that any amount had been borrowed, or that the wheat had been pledged as security for any sum whatever. Of course it is absurd to speak of collecting an equity, and in legal phraseology no meaning appropriate to anything involved in this case can he given to the term, bio equity is averred, and there probably was none to aver. But doubtless the parties had reference to some surplus which might remain after some charge upon the wheat' had been satisfied. But there is not shown that there was any such charge, much less is it shown that there was or would be a possible surplus after the charge hinted at had been paid.
More from California Supreme Court
- People v. Wende (1979)
- People v. Watson (1956)
- People v. Superior Court (Romero) (1996)
- People v. Kelly (2006)
- Auto Equity Sales, Inc. v. Superior Court (1962)
- Aguilar v. Atlantic Richfield Co. (2001)
- People v. Lewis (2021)
- In Re Estrada (1965)
- Denham v. Superior Court (1970)
- People v. Marsden (1970)