CAPITAIN v. WRECKING CO

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District Court of Appeal, Second District, Division 2, California.

CAPITAIN v. L. A. WRECKING CO. et al.

Civ. 18131.

Decided: December 20, 1950

Bloom & Bloom, Hollywood, Eleanor Jackson, Culver City, for appellants. Barry Sullivan, Los Angeles, for respondent.

Plaintiff and defendants entered into an agreement in writing whereby plaintiff purchased a house belonging to defendants which was to be moved by the latter to a point to be designated by plaintiff on a vacant lot which he owned. The purchase price was paid in full and the house was moved to the point specified by plaintiff. It was a part of the agreement that plaintiff was to pay the cost of moving in addition to the price of the building. When the house reached the appointed location defendants left it on blocks awaiting the foundation which plaintiff was to provide. The building was completely destroyed by fire and this action was brought to recover the amount paid. The court entered judgment in favor of plaintiff from which defendants have appealed. There is also a purported appeal from the nonappealable order denying defendants' motion for a new trial.

Since in the absence of an agreement to the contrary the risk of loss follows the title, Civ.Code, sec. 1742; J. S. Potts Drug Co. v. Benedict, 156 Cal. 322, 334, 104 P. 432, 25 L.R.A., N.S., 609, the sole question for determination is in whom title was vested at the time the house was destroyed.

It is elementary that when an unconditional contract of sale has been entered into title passes to the buyer upon the execution of the contract and the risk of loss is his even though possession of the property has not been delivered. J. S. Potts Drug Co. v. Benedict, supra. Payment of the purchase price is an indicium of a present sale and the passage of title. Aiello v. Sliskovich, 72 Cal.App.2d 39, 43, 163 P.2d 768; Gianelli v. Globe Grain & Milling Co., 48 Cal.App. 103, 106, 107, 191 P. 720. In the instant case plaintiff agreed to pay $3,500 as the full price of the building plus $87.50 sales tax. He made a deposit of $500 on the purchase price at the time the contract was executed and agreed to pay the balance of $3,087.50 to defendants when the application to move the building had been approved by the City or County of Los Angeles. The agreement also contained the following language: ‘This sale subject to the approval of buyer to the additional cost of moving building to its new location. The Buyer agrees that if the total price of this building does not exceed $6,500 delivered he will accept the entire contract.’ Plaintiff paid the balance due on the purchase price of the house before it was moved.

Plaintiff maintains that the agreement is an executory contract to sell; the balance remaining unpaid on the contract was not due and payable until the building was on the foundation and that therefore title had not passed at the time the house was destroyed by fire. Plaintiff's contention is untenable even if the contract be construed as an executory contract. Plaintiff himself testified that it was his obligation to construct the foundation and it had not been constructed. Moreover, the clause in the contract to which plaintiff refers, authorizing a finance company to pay defendants the balance due when the building was on the foundation, was not in the contract as executed by plaintiff and defendants but was written by hand by plaintiff in a copy which was delivered to the finance company. Defendants are therefore not bound by the clause.

‘Where there is a contract to sell specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.’ Civil Code, sec. 1738. No different intention appearing from the record, under Rule 5 of section 1739 of the Civil Code the title passed to plaintiff when the house reached the place agreed upon.

It was necessary to remove a portion of the roof of the house in order to permit it to pass under power wires while being moved. The roof had not been restored at the time of the fire. Plaintiff contends that since defendants were in the process of repairing the roof the building was still in their possession and had not been delivered to him. When the house had been placed on plaintiff's lot it was in a deliverable condition and was delivered. Defendants were required to repair the roof in order to place the house in a liveable condition but their work in so doing did not remove the building from plaintiff's possession after delivery had been made in accordance with the contract. The fact that something is to be done to the goods after delivery will not prevent the title to the property from passing. Dentzel v. Island Park Ass'n, 229 Pa. 403, 78 A. 935, 33 L.R.A., N.S., 54.

Judgment reversed. Purported appeal from order denying new trial dismissed.

WILSON, Justice.

MOORE, P. J., and McCOMB, J., concur.