Roberts v. Burr

California Supreme Court Oct 7, 1898 No. L. A. No. 435Published

Before: Chipman

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Holding. The court held that the evidence established an immediate delivery and an actual and continued change of possession of the goods from the vendors to the vendee, satisfying the requirements of the Civil Code, and that the trial court erred in finding the sale fraudulent as a matter of law.

Issues

Whether the sale of goods from a husband and son to a wife, who resided in the same house, satisfied the statutory requirement of an immediate delivery and an actual and continued change of possession.
Whether the employment of the vendor's son by the vendee's bailee to manage the store negated the required change of possession.
Whether the trial court erred in determining that the sale was fraudulent as a matter of law in the absence of allegations or proof of actual fraud.

Disposition. reversed

Quotations verified verbatim against the opinion

“We think the employment of James Lucas by plaintiff did not in any just sense, under the facts in the ease, indicate that there was not an actual and immediate and a continued change of possession of the goods from Lucas & Son to Mrs. Lucas.”

Synopsis

Sale—Intent to Defraud Creditors.—Civil Code, section 3442, makes a question of fraudulent intent one of fact. Act of 1895 makes a voluntary transfer without consideration by one insolvent, or in contemplation of insolvency, fraudulent as to creditors. Held, that the rule under section 3442 of the Civil Code was not changed by act of 1895, except in transfers of the kind specially mentioned in the act.

Sale—Change of Possession.—A Firm Composed of Father and Son sold to the wife and mother jewelry, which was delivered to her and kept for. three months in her house, where she resided with her husband and son, except when she intrusted a part of it to them to sell to obtain necessaries for the family, they returning it on failing to find a purchaser. Held, that there was an actual and continued change of possession, as against creditors.1

Sale—Change of Possession.—A Mother Purchased Jewelry from a firm composed of her son and another, and, after keeping the property three months, delivered it to plaintiff, to be sold on commission. Held, that the employment of thé son by plaintiff to assist him in his business, under a contract to which the mother was not a party, did not indicate that there had been no actual and continued change of possession in the mother, as against creditors.

Sale—Fraud on Creditors.—A Firm Sold Its Stock to a Creditor, after which plaintiff purchased it from him, and published a newspaper notice stating that a member of the firm was his manager. Held, that as against firm creditors, who attached property of plaintiff as belonging to the firm, the notice was admissible to show the partner’s connection with plaintiff’s business.

Sale—Fraud on Creditors—Evidence.—As Against One Claiming Goods under a purchase from an insolvent firm, a statement of the firm to a mercantile agency long before the sale is not admissible in behalf of attaching creditors, if no actual fraud is alleged, and the only question is whether there was an actual and continued change of possession in the purchaser.

CHIPMAN, C. Action to recover possession or the value of certain jewelry, precious and semi-precious stones, as bailee of the owner. Defendant justifies as sheriff under an attachment. Defendant had judgment, from which, and from the order denying motion for a new trial, plaintiff appeals. The trial was by the court without a jury.

S. E. Lucas & Son (composed of S. E. Lucas and James H. Lucas) were in the jewelry business at Los Angeles. Emily A. Lucas was wife to S. E., and mother of James H. She had made large advances of money to the firm out of her separate estate, and the firm owed her on August 2, 1895, nearly $6,000. On that day the firm conveyed by written bill of sale and delivered to her the possession of certain of their goods, the subject of this action, of the value of $5,025. November 14th and 16th Mrs. Lucas delivered the goods to plaintiff, to be sold on commission. On January 7, 1896, one Trafton, a creditor of the firm, commenced an action against the firm by attachment, and caused the goods t'o be seized. Subsequently he obtained judgment, and the property was sold under execution, Trafton becoming the purchaser for the amount of his judgment and costs, about $700. The court found “that the execution of the bill of sale was not accompanied by an immediate delivery, .... and was not followed by an actual and continued change of possession, .... and no actual and continued change of possession .... had occurred at the time of the levy of the attachment.” [156]The court also found that plaintiff at the commencement of the action “was not the owner nor in the possession of, nor entitled to the possession of, the stock of jewelry .... described in the complaint, as against an attaching creditor' of the said S. E. and James H. Lucas,” and “that the said bill of sale .... is fraudulent and void against the creditors of the said S. E. and James H. Lucas.”

Appellant challenges the sufficiency of the evidence to justify the decision. The sole question contested arises out of the finding that there was no immediate delivery followed by an actual and continued change of possession, as required by section 3440 of the Civil Code. It appears from the evidence, and is not contradicted, that Lucas & Son were indebted to Mrs. Lucas as already stated, and that on her demand for payment they sold and delivered to her the goods in question. S. E. Lucas took the package to her, and delivered it and the bill of sale to her, and received certain notes, aggregating over $5,000, in payment. There is no substantial conflict as to the following facts: Mrs. Lucas at the time resided with her husband and son in a house belonging to her. She placed the package containing the articles when delivered to her in a private satchel, and put the satchel in her bedroom closet, to which her husband had access. In October she delivered some of the articles to her husband and some to her son, to be sold to obtain necessaries for the family; but, finding no purchaser, the articles were returned to her and replaced in the satchel, which she kept under lock and key. With this exception, neither the husband nor the son had possession or control of the property at any time. Lucas & Son continued in business until September 2d, when they sold out to Lyons & Son, creditors, and the latter went into exclusive possession. No question is raised as to the bona fides of this sale. On November 13th, plaintiff took a lease of the premises, and purchased the fixtures and fittings of Lyons & Son, and the latter surrendered the premises to plaintiff. He went into business, and advertised himself as dealer in precious stones, and placed his name on the window. He received goods on sale from several persons. On November 14th and 16th, Mrs. Lucas personally delivered to him the articles she had purchased from Lucas & Son, to be by him sold upon commission. He receipted to her for the goods. He took James Lucas into the

Roberts v. Burr

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