Davis v. Winona Wagon Co.

Citations

• 120 Cal. 244
• 52 P. 487
• 1898 Cal. LEXIS 743

Syllabus

<p>Insolvency—Sale Void as to Creditors—Want of Delivery and Change-of Possession—Action by Assignee.—Where a sale of vehicles by an insolvent corporation was made to another corporation, under an agree- . ment that the insolvent corporation should retain possession of the-property, sell the same on commission, and account to the vendee corporation for the net proceeds of sale, such sale is void as to the creditors of the insolvent corporation for want of immediate delivery and an actual and continued change of possession of the vehicles; and the assignee of the insolvent corporation representing the creditors, may bring an action to recover the value of vehicles subsequently converted by the vendee corporation to its own use.</p> <p>Id.—Delivery by Assignee to Vendee —Pleading—Demand—Answer Claiming Title.—Where the property was delivered by the assignee to the corporation vendee, by reason of its claim of title thereto, and, in a subsequent action by the assignee to recover the value of the property so delivered, for the benefit of creditors of the insolvent corporation, the defendant set out that the property belonged to it, and based its right to defeat the action on that ground alone, no demand for a return of the property was necessary, under such circumstances, before the commencement of the action.</p> <p>Id.—Action for Conversion—Burden of Proof—Estoppel of Plaintiff— Sales upon Commission—Agency.—In an action by the assignee to recover the value of vehicles alleged to belong to the insolvent corporation and to have been converted to its own use by the defendant corporation, plaintiff is hound to prove that the vehicles of the insolvent corporation were converted by the defendants, and not by the insolvent corporation, and plaintiff is estopped from claiming that the insolvent corporation was not the owner of the vehicles, but was a mere agent of the defendant, for the purpose of claiming that sales of vehicles made by the insolvent corporation prior to the