Yost v. May

PEEK, J. This is an appeal by plaintiff from a judgment in his favor in an action to recover the balance due on a conditional sales contract.

Although the appeal is on the judgment roll alone the following facts appear to be conceded by the parties. R. L. and Virginia Allred, husband and wife, as the owners of certain real and personal property, leased the same to the plaintiff Yost, who thereafter conducted a restaurant business on the premises. Subsequently Yost assigned his lease to the defendants Robert P. and Dorothy L. May. In addition he sold to them, by a conditional sales contract, certain personal property used in the conduct of the business. The contract, among, other things, provided that if the Mays failed to make any of the payments on time, the sellers might, without demand or notice, retake possession of the property and resell the same at public or private sale and credit the net proceeds on the balance due, the purchaser agreeing to pay the seller for any deficiency remaining under the contract. A further provision prohibited the buyer’s assigning his interest without the consent of the seller. Shortly after the Mays went into possession they defaulted on their contract with Yost and closed the doors of the restaurant. Approximately two months thereafter Mary M. Ives, for a valuable consideration and without knowledge of the existence of the conditional sales agreement between Yost and the Mays, purchased from the latter by bill of sale certain personal property itemized therein. Notice of the sale as provided in section 3440 of the Civil Code was given by Ives. The Mays surrendered the lease to the Allreds who in turn executed a new lease in favor of Ives. Ives renovated the premises, bought new equipment and went into possession thereof. Some time thereafter Yost instituted this proceeding to recover the balance alleged to be due under his conditional sales contract with the Mays. The trial resulted in a nonsuit as to the Allreds and a judgment in favor of Yost against the Mays for the unpaid balance due under said con- ■ tract, to wit: the sum of $1,700, plus accrued interest, attorney fees and court costs. The judgment further directed the sheriff of Sacramento county to take possession of certain designated personal property which was substantially the same as that set forth in said sales agreement and sell the same, applying the proceeds to the satisfaction of the judgment against the Mays. Yost gave notice of appeal and Ives filed a motion for a new trial. The appeal was dismissed and the motion for a new trial was granted as to Ives alone.

[43]