Opinion
[Syllabus Material] [Syllabus Material] Rehearing 22 Cal. 492 at 496.
Appeal from the Sixteenth Judicial District.
One Strauss, engaged in the dry goods and clothing business, had his stock of goods attached at the suit of his creditor, and to obtain a release of the attachment sold the stock to the plaintiff, Weil, a cigar merchant, who paid or undertook to pay the attachment debt. Within a day or two after the sale, plaintiff received the goods from the Sheriff and removed them to his cigar store, where they were placed, some in boxes under the counter, and some in a back room. A few days after, Strauss, under an alleged contract with Weil that the latter should pay him for his services seventy-five dollars per month, went to plaintiff's store and commenced selling the goods and peddling them out at retail. The management of the sales was left entirely with him, and and at times, while Weil was absent at San Francisco, Strauss had possession and control of the entire store and business. In this condition the goods were, under another attachment against Strauss, taken into possession by the defendant, the Sheriff of the county, as the property of Strauss. The action is by Weil for damages for this taking. A jury trial was had, resulting in a verdict in favor of plaintiff for seven hundred and thirty-three dollars, and judgment rendered accordingly. A motion for new trial was denied, and from this order and the judgment the defendants appeal.
COUNSEL:
H. O. Beatty, for Appellant.
Tod Robinson and W. L. Dudley, for Respondent.
JUDGES: Crocker, J. delivered the opinion of the Court. Cope, C. J. and Norton, J. concurring.
OPINION
CROCKER, Judge
On petition for rehearing, Crocker, J. delivered the following opinion. Cope, C. J. concurring:
In the petition for a rehearing, it is urged that sec. 15 of the Act respecting fraudulent conveyances and contracts applies only to sales of goods in the possession of the vendor, and that, as the goods in this case were in the possession of the Sheriff at the time of the transfer from Strauss to the plaintiff, therefore the statute does not apply, and it was not necessary for the plaintiff to maintain an " actual and continued change of possession." It will be noticed, however, that sec. 15 includes " sales" and " assignments" of goods and chattels; that is, sales made by a vendor of goods in his possession or under his control, and assignments of goods not thus in his possession or control. If the goods were not in Strauss' possession or under his control at the time of his contract with the plaintiff, then the transfer to the plaintiff was an assignment of the goods or the right to their possession, and it comes fully within the statute.
Rehearing denied.