Rothschild v. Swope

Citations

• 116 Cal. 670
• 48 P. 911
• 1897 Cal. LEXIS 605

Syllabus

<p>Sale of Stock of Merchandise—Statute of Frauds—Change of Possession—Indicia of Ownership—Void Sale—Attachment.—Upon sale of a stock of merchandise to certain creditors of the merchant, in full of their claims, in order to render the change of possession sufficient to satisfy the statute of frauds, it must not only be actual and continued, but must be open and unequivocal, carrying with it the usual marks and indications of ownership on the part of the vendees, and must be such as to proclaim to the world the new ownership, and to evidence the usual relationship between property and its owner, and must be taken to be retained, and not with the purpose to return it to the vendor; and where the change of possession is not of that character, the sale is void ab initio, as to other creditors of the vendor, and the unsold portion of the goods may be seized upon attachment against the vendor, at suit of a creditor not participating in the sale.</p> <p>Id.—Tests of Validity—Presumption of Possession by Vendor.—The character of the sale and the character of the possession give the true color to the transaction, as valid or void, depending upon the intention and conduct of the parties in making the sale, and upon the circum. stances surrounding the parties while the vendor is out of possession; and the mere fact alone that the vendor resumed possession within two weeks after the sale, does not necessarily import fraud, nor that the possession of the vendees was not continued; neither does it imply a right to repurchase or take back the property, but is at most a circumstance to be considered in reference to the intention of the parties.</p> <p>Id.—Conditional Transfer—Agreement for Repossession by Vendor. Where the evidence tended to show that an agent of the vendees, having full authority to represent them, agreed with the vendor, not for an absolute or unconditional change of possession, but for a temporary possession for the purpose of a forced and limited sale, and tha