Moody v. Newmark & Edwards

Citations

• 121 Cal. 446
• 53 P. 944
• 1898 Cal. LEXIS 930

Syllabus

<p>Action upon Accepted Obdbb—Insufficient Complaint — Equity not Shown.—In an action upon an accepted order “to be paid as equity is collected,” from certain wheat in a warehouse, described as sold to a person named, and by the terms of which one-third of the amount collected, after the amount borrowed on the wheat had been paid, was to be paid upon the order until the amount specified therein should be fully paid, a complaint which does not state facts showing the existence of an “equity,” or the amount borrowed, or that the wheat had been pledged as security for any sum, or what the maker of the order had to do with the wheat after it had been sold, or that he had a lien upon it, and does, not directly allege that the price of the wheat was to be collected by the persons accepting the order, is insufficient upon both special and general demurrer.</p> <p>Id.—Inconsistent Findings—Suppoet of Judgment.—Where it affirmatively appears from the complaint and a portion of the findings that the entire fund which could have existed, applicable to the debt represented by the order, had been paid by the defendants thereupon, but it is elsewhere found that the full purchase price which the defendant should have received would have yielded a much greater sum to the plaintiff than the amount paid, such finding being irreconcilable with the allegations of the complaint and with the other findings, the findings being inconsistent upon an essential fact, cannot support the judgment.</p> <p>Id.—Sale of Wheat—Chattel Mobtgage—Depbeciation in Value—Loss of Vendobs.—Where the accepted order sued upon was drawn by one of a firm of vendors, who had sold the stored wheat, for his proportion of the surplus price which might be collected by chattel mortgagees of the vendee, above the mortgage debt, interest, charges and costs, and the chattel mortgage provided that if the wheat deteriorated in quality or depreciated in price the vendee would correspondingly reduce the debt or increase the