Kirtley v. Perham

The defendants appeal from the judgment, upon the judgment-roll alone.

The' complaint, as a cause of action against the defendants, alleges that they are jointly indebted to the plaintiff in the sum of $4,599.38, for money jointly had and received by the defendants, to and for the use of the plaintiff, and that said sum of money remains unpaid.

The defendants, in addition to the answer denying the indebtedness alleged in the complaint, filed a pleading which they denominate a cross-complaint, but which, more accurately speaking, is a counterclaim, it being a cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff’s claim. (Code Civ. Proc., see. 438.) The main questions presented for decision arise upon the facts set forth in the cross-complaint and the findings of the court thereon.

The money had and received by defendants for which the plaintiff sues was money paid by plaintiff to defendants as part of the price of certain -personal property sold by the defendants to the plaintiff in accordance with the terms of a written agreement between them. His claim is that while he was in possession of the property under the agreement of sale, but before the price became due, and before he received title to the property sold to him, the property itself, without his fault, ceased to exist, and that as a consequence he was relieved from the obligation to pay the remainder of the price and became entitled to recover from the defendants the money he had paid thereon, less the profits he had realized from, the property during the time he had the possession and use thereof.

The defendants in their counterclaim allege a cause of action for the recovery of the part of the purchase price of the

The court below held with the plaintiff upon these propositions, refused any relief upon the counterclaim of the defendants, and gave judgment for the plaintiff for the sums he had paid upon the price, less the profits realised, as above stated.

Mr. Williston, in his treatise on Sales, says that where goods sold are delivered to the buyer, but title is retained by the seller until the price is paid, inasmuch as the buyer has the immediate use of the goods, he must stand the loss from subsequent ordinary deteriorations, and that “it seems properly to follow that if the goods are accidentally destroyed or injured, the buyer must stand the loss; that is, he must pay the price in full at the time agreed. The decisions upon the ° point are in conflict, but the weight of authority sustains the view here expressed.” (Williston on Sales, sec. 304.) The defendants rely on this doctrine.

We need not review the authorities said to be in conflict, or examine into the merits of the diverse arguments therein. In this state the question is settled in favor of the plaintiff and in accordance with the decision of the court below. Discussing the ease of a sale of personal property to be delivered in the future, where the property, without fault of the vendor, has perished in the interval, the court in Potts v. Benedict, 156 Cal. 334 , [ 25 L. R. A. (N. S.) 609 , 104 Pac. 432 ], says: ‘ ‘ The liability to pay the price in such a case, notwithstanding failure to deliver possession, rests upon the fact that the purchaser was the owner of the property at the time of its destruction. It is elementary in the law of sales that, in the absence of special agreement to the contrary, the risk accompanies the title, and that when a present unconditional

It is not disputed in this case that the property sold under t,he agreement, with the exception of an unimportant portion thereof which the court finds had no substantial value, ceased to exist about two years after the execution of the agreement, without fault of either party. The property, as described in the record, consisted of the right to deliver a morning newspaper published in San Francisco, known as the “San Francisco Call,” to subscribers residing upon -certain streets in San Francisco. The right, as described in the. agreement, was either a permanent right or one which was .to continue to exist for an indefinite period in the future. Nothing was said therein, or anywhere in the record, as to the term of its continuance. The agreement is dated August 31,. 1911, and according to the record it was executed and delivered about September 21, 1911. The publication of the “San Francisco

From the principles above stated, as established by our decisions, it follows that if we assume that the title to this right remained in the sellers, by virtue of the terms of the agreement, at the time such publication was discontinued, the loss must fall upon the defendants, and the plaintiff was entitled to recover the sum which he had already paid on the price thereof. It is necessary, therefore, to determine the effect of the agreement with respect to the transfer of title and the time when the same was to pass to the buyer.

The agreement declares that “this contract of sale and the sale of said property herein provided for, and the terms and conditions hereof, are made "subject to the approval and confirmation of the superior court of the city and county of San Francisco, state of California, wherein the estate of said Abbie L. Randall, deceased, and the guardianship of said Laurence George Randall, said minor, are pending.” It shows that Perham entered into the agreement as the executor of the estate of Abbie L. Randall, deceased, and as guardian of Laurence George Randall, a minor, and that the defendant, William Edgar Randall, executed it in his own behalf. The agreement of sale was confirmed by the superior court for Perham, as executor, on September 14, 1911, and for Perham, as guardian, on September 21, 1911, and thereupon it became effective as of its date.

It states that the vendors, for the sum of eight thousand dollars, to be paid to them by said C. A. Kirtley, “hereby promise and agree to sell” to Kirtley, and that Kirtley “hereby agrees to purchase from” the vendors, the property described. It recites that two thousand five hundred dollars was paid in cash on the price, and it provides that Kirtley should have three years from the date of the agreement within which to pay the balance, with the privilege of paying thereon, at any time or times, sums of one hundred dollars or more; that if he failed to pay the full price, or in other particulars failed to perform his covenants in the agreement expressed, the amount paid by him should be forfeited, and the agreement should thereupon become null and void; that

From these provisions of the agreement it is clear that it constituted nothing more than an executory agreement to sell to Kirtley the property described therein, and that the title thereto was to remain in the vendors until Kirtley had paid the full price fixed for the property, and had in the meantime performed all the other covenants of the agreement to be performed by him, and that only upon such performance was the title to be transferred to him. The fact that the agreement declares that it was entered into subject to confirmation by the superior court does not alter its character. The effect of that provision was that it did not become an effective agreement until such confirmation was procured, and the result-was that when the proposed agreement was confirmed, it took effect as 'an executory agreement only, and that by virtue of its terms, it related back to its date for the purpose of fixing the time of the inception of the right of possession by Kirtley and the time for the payment of the price. The

It is suggested that as there was no warranty that the publication of the “Call” should continue, and as neither party could foresee its discontinuance, the rule stated in Potts v. Benedict should not apply. There is no force in this argument. In the case of the sale of a horse there may be no warranty as to its length of life, and no one could foresee the time of its death, yet the rule that the loss follows the title applies to such sales. (Girdner v. Beswick, 69 Cal. 118 , [ 10 Pac. 278 ].) No distinction of this character can be made.

Defendants invoke the rule stated in Pomeroy’s Equity Jurisprudence (section 855), quoted and approved in Colton v. Stanford, 82 Cal. 388 , [ 16 Am. St. Rep. 137 , 23 Pac. 16 ], that where parties knowingly enter into a speculative contract—one in which they intentionally speculate as to the result—“they are supposed to calculate the chances, and they certainly assume the risks,” where there is no actual or con

Since the filing of the closing brief of the appellant, prior to the first submission of the cause, a number of additional briefs have been filed by the attorneys for the parties and by attorneys appearing amici curiae in behalf of other parties who claim- to be interested in the questions involved. In these briefs it is contended that the subject matter of the sale was nothing more than a personal agency for the delivery of newspapers for the publishers thereof, which was either not transferable or, if it could be transferred, that the transfer was complete when the publishers of the “Call” accepted Kirtley as such agent, and allowed him to perform the required service. There is nothing in the record to show how or from whom the plaintiffs acquired the property which the agreement purports to sell. It is there termed “property” and it is described as “all those two certain ‘San Francisco Call’ newspaper routes for the delivery and service of said newspaper” along the streets specified, including also the right to serve, and deliver said “Demokrat” over said routes. It is certainly a legal possibility that the vendors could have possessed an unqualified and unconditional right to serve and deliver said newspapers along those streets for a definite term of years extending beyond the duration of this agreement of sale, under a contract which the publishers could not revoke, except for good cause. Such a right is assignable. There is nothing to the contrary in the agreement of sale or in the record. Hence, in aid of the judgment we must presume that the right sold was of that character.

It is further claimed that there is a fatal variance between the allegations of the complaint and the findings and judgment. That there is a variance must be conceded. The complaint charged that the defendants jointly received the money sued for, and prayed judgment against Perham in two dis

The explanation is as follows: At the time the agreement of sale was made, a one-half interest in the property sold belonged to the estate of Abbie L. Randall, a one-fourth interest to Laurence George Randall, a minor, and one-fourth to William Edgar Randall, an adult, and Ferham was executor of said estate and guardian of Laurence. • The money paid on the price was of course held in the same proportions. The agreement purports to be a joint agreement of sale by all the interested parties and it does not state whether their ownership is joint or several. Their ownership was in fact a common ownership, the interests being as above stated. The three parties interested as vendors each were to receive the benefit of a like interest or share in the money paid on the price, and, under section 1659 of the Civil Code, the implied promise to repay it, upon which the complaint is based, must be deemed to be joint and several. It was therefore permissible to sue them jointly. Before the action was begun the one-half interest in the property belonging to the estate of Abbie L. Randall, presumably including this money, was distributed to Ferham, as trustee for the benefit of said William and Laurence, who were sons of said decedent, and the one-half thereof due to William, being a one-fourth interest in the proceeds of the, property sold, had been delivered over to William by said trustee. At the time of the trial and judgment, therefore, William held a one-half interest in the money sued for, Laurence held a one-fourth interest therein, and the other one-fourth was held by Ferham as trustee for the use and benefit of Laurence. The total sum found due to plaintiff being $4,799.80, the court divided it according to the respective interests, and gave judgment against each defendant for his proportion thereof.

While this may be a technical variance, so far as the mere form of words is concerned, it is not fatal. It was clearly

The judgment is affirmed.

Sloss, J., Melvin, J., Henshaw, 3"., and Lawlor, J., concurred.

Rehearing denied.