Traders Finance Corp. v. Sanders

JAMISON, J., pro tem. The complaint in this case contains two counts. The first alleges that prior to the ninth day of April, 1931, plaintiff was the owner of certain meat market fixtures and' equipment, and that defendant Sanders was the owner of certain grocery store fixtures and equipment, contained in a certain store building located in the town of Saticoy, California, all of said property being' in the possession of defendant Sanders; that with the consent of plaintiff, defendant Sanders sold all of said equipment to one Roy Rasmussen and one E. J. Gordon for the sum of $4,000, and that defendant Sanders has received all of said sale price except the sum of $650 still owing from the purchasers; that plaintiff and defendant Sanders did not determine in advance the respective proportions of the sale price each was to receive and that plaintiff’s portion thereof was two-thirds of said sale price. The second count is for money had and received in the sum of $2,666.66.

The action was brought against Sanders and One Doe and Two Doe, and defendants Rasmussen and Gordon were served with summons and substituted for One Doe and Two Doe, Rasmussen appearing in person and Gordon not appearing. Judgment was rendered against Sanders alone. He moved for a new trial and, same being denied, appeals from said judgment.

In December, 1927, appellant was conducting a grocery and general merchandise business in the town of Saticoy. Shortly thereafter he leased a portion of the premises occupied by him to one Jackman for the purpose of operating a meat market. Jackman installed certain fixtures in the meat market consisting of an ice box, ice machine, two meat boxes, Stimson scales, etc. The title to the meat market fixtures was in respondent. Jackman after conduct[193]ing tlie meat market business for a brief period, disappeared. After Jackman left, respondent through its agent and general manager W. V. Scott, agreed with appellant that the meat market fixtures should remain in the possession! of appellant upon 'the understanding that appellant would keep the said fixtures in repair, and he was authorized to sell them for respondent whenever a buyer could be found. In February, 1931, fire injured and damaged appellant’s stock of groceries and merchandise, and what remained of it was disposed of. After said last-named date only the meat market fixtures and the grocery store and merchandise fixtures remained. It was agreed that appellant should have the right to sell said meat market fixtures, the price of same to be determined' after the sale. In April, 1931, appellant obtained a buyer for all of said equipment, including the grocery and meat market fixtures, for the sum of !$4,000, defendant Rasmussen being the purchaser. Shortly after said sale appellant informed Scott of the fact of the sale and they endeavored to determine what amount Scott should receive for the meat market fixtures. Scott demanded $2,000, to which sum appellant objected and offered $850; this Scott refused to accept. Failure to arrive at any agreement regarding the meat market fixtures, appellant notified Scott that he would go back to Rasmussen and get him to release the meat market fixtures from said sale. Appellant then took the matter up with Rasmussen and by agreement with him the meat market fixtures were released from the said sale and the sum of $1250 was credited on said purchase price of $4,000.