Majority
p. 289E. FITZGERALD and A. F. BROWN, Appellants, v. WM. R. GORHAM, Sheriff, Respondent.
Headnote
[1] Statute of Fbauds, Change of Possession. — The continued change of posssesion, required by the Statute of Frauds, after a sale of goods :ind chattels, in order to validate the sale, must be “actual,” and not constructive.[2] Idem — 'Where the owner of goods made a bona fide sale of them to a purchaser, and delivered possession of them to him, and the purchaser, immediately after, appointed the former owner of them his agent, to take charge of them and sell them, and, for that purpose, re-delivered the possession of them to him: Held, that the sale was fraudulent and void, as against the creditors of the original owner. ‘
Appeal from the Twelfth Judicial District.
This was an action of trover, brought by the plaintiffs against the defendant, Sheriff of the County of San Francisco, for taking and carrying away, on or about the 20th of June, ‘1854, the goods in a certain store, No. 102 on Battery street, in the City of San Francisco, valued at $6,000. The material facts in the case were these: The goods ' originally belonged to Samuel J. Josephs. On or before the 22d of May, 1854, they were attached by the Sheriff, as the property of Josephs, in a suit against him, at the instance'of Horton & Co., for $6,000. Immediately after the said attachment,
p. 290
Josephs sold the goods in the store for $8,000, by bill of sale, to the plaintiffs in this action, and delivered them the possession, part of the consideration being the payment and release of the attachment levied upon the goods. The bill of sale was dated, and the delivery of possession [290] under it was made * May 22d, 1854. On the following day, plaintiffs appointed Josephs their agent to sell the goods, and allowed him a salary of $150 per month for his services. The books were thenceforth kept in the name of Fitzgerald & Brown, by Mr. Fogo, the same person who had kept them before for Josephs. The plaintiffs also paid the rent of the store to the landlord, from the date of the sale to them.
At the time of this sale to plaintiffs, Morris Speyer was also a creditor of Josephs, on a debt contracted before that time, but not then due. After his debt became due, he brought suit against Josephs, issued an attachment on the 15th of June, 1854, and under it, on the 20th of the same month, levied upon the goods previously sold and delivered to plaintiffs, and took and carried them away. This action was brought by plaintiffs against the Sheriff, to recover the value of the goods so taken. On the trial, the Court held that there had been no sufficient change of possession, as required by the Statute of Frauds, and rendered judgment for the defendant, from which plaintiffs appealed.
Bates, Lawrence & Hastings, for Appellants.
Burritt & Gorham, for Respondent.
delivered the opinion of the Court.
Mr. Ch. J. Murray concurred.
By the 15th section of the Statute of Frauds of this State, it is made conclusive evidence of fraud in the sale of goods, unless the sale is “accompanied by an immediate delivery, and be followed by an actual and continued change of possession .”
In this case there was, at the most, a mere constructive
p. 291
change of possession, Josephs was continued in charge and control over the goods; and although the sale to the plaintiffs was in good faith, and Josephs was in like good faith their agent on clerk, jet the very case is presented upon which the statute intended to operate.
The continued- change of possession must be “actual," and not constructive.
Judgment affirmed.