Acquisto v. Bank of America National Trust & Savings Ass'n

SHINN, P. J. In March of 1948, Charles C. McIntosh was in the used car business in Ventura. Plaintiff was engaged separately in the same business. McIntosh then had five automobiles in stock, upon which the Bank of America had a lien as security for the payment of $3,665.50. The bank held the ownership certificates and two so-called trust receipts signed by McIntosh, one covering four cars and the other one car. McIntosh held a copy of the four-ear receipt to which had been added a description of the fifth car. The purport of these writings was that McIntosh retained possession of the cars as trustee for the bank, and was authorized to sell them and. receive the certificates of ownership upon payment of stipulated amounts upon the indebtedness. Being in financial difficulties, McIntosh proposed to plaintiff that he assume the indebtedness to the bank and take title to the five cars. The court found that on or about March 11, 1948, McIntosh assigned to plaintiff all his right, title and interest in and to said automobiles and his rights as trustee in and to said trust receipt; that on the same day plaintiff notified defendant of said assignments, exhibited to defendant a bill of sale of the cars, and a written authorization from McIntosh directing defendant to accept from plaintiff the amount of its lien and to surrender to plaintiff the certificate of ownership for each of them; that plaintiff tendered to defendant the amount of the indebtedness and demanded the certificates of ownership properly endorsed; that defendant refused to deliver said certificates or to release it's lien; and that plaintiff was thereby damaged in the sum of $1,534.50. The cars were found to have a retail value of $6,875, and a wholesale value of $5,200. The damages were fixed at the difference between the wholesale value and the amount of the indebtedness to the bank. Defendant appeals.

[738]The bank throughout has relied upon the admitted fact that before plaintiff tendered the amount of the indebtedness it had been notified by McIntosh not to accept payment from plaintiff or deliver to him the ownership certificates. Two points are made on the appeal, (1) that there was no effective transfer to plaintiff of the interest in the cars which was vested in McIntosh under his arrangement with the bank, and (2) that the refusal of the bank to accept payment of the debt and surrender the ownership certificates was not a proximate cause of any damage suffered by plaintiff.

It is said in the opening brief, “there was no attempt to transfer or assign any right, title or interest in or to the automobiles or ownership certificates.” It is also said that the negotiations between plaintiff and McIntosh amounted only to an offer by the latter to transfer title to the cars after plaintiff had satisfied the indebtedness to the bank. McIntosh, it is said, revoked his offer by notifying the bank, prior to plaintiff’s tender, not to accept payment of the indebtedness or deliver the ownership certificates to plaintiff.