Opinion
No. 70-456
Decided October 13, 1971.
Consigner of cattle to defendant sales yard had purchased the cattle from plaintiff, but had paid for them with "short" check. Plaintiff alleged defendant wrongfully paid to consigner the funds defendant received from its sale of the cattle. Plaintiff appealed summary judgment for defendant.
Affirmed
1. SALES — Title Vested — Consigner — Defendant — Required — Deliver Proceeds. Plaintiff had vested title to cattle in party who consigned cattle to defendant when it delivered the animals to him and marked purchase statement "Paid in Full"; thus defendant's subsequent sale of the cattle and delivery of the proceeds to its consigner was proper and was required by statute.
Appeal from the District Court of Lincoln County, Honorable Robert F. Kelley, Judge.
Mitchell Babcock, for plaintiff-appellant.
Robert J. Safranek, for defendant-appellee.
This is an appeal from a summary judgment entered in defendant's favor based upon stipulated facts. Plaintiff was the operator of a sales yard which sold thirty-three head of consigned cattle to one Alton Friend. It delivered the cattle and a purchase statement marked "Paid in Full" to Friend, who had paid for the cattle by giving plaintiff a check for $4,024.26. Friend then consigned the animals to the defendant, who in turn sold them to a third party. In the interim, Friend's check was dishonored at his bank due to insufficient funds in his account. Plaintiff immediately notified the defendant of this fact and requested that defendant withhold payment of the proceeds owed to Friend from the sale of the cattle. The defendant temporarily stopped payment of its check delivered to Friend in payment for the thirty-three head of cattle, but later revoked the stop-payment order and the check to Friend in payment of the cattle cleared the bank.
Plaintiff sued, claiming that since Friend had not paid plaintiff for the cattle, the proceeds of defendant's sale of the cattle belonged to plaintiff and defendant had wrongfully paid them to Friend. The trial court found in defendant's favor and plaintiff appeals.
It was stipulated that plaintiff, as consignee, had sold the cattle to Friend who was given possession of the animals at the time of sale.
Plaintiff relies on 1965 Perm. Supp., C.R.S. 1963, 8-11-14. However, since this section provides that the operator of a public livestock market shall warrant the title to all livestock sold through his market and shall be liable to the rightful owner thereof for the net proceeds in cash received for such livestock so sold, it supports defendant's position.
[1] As to defendant and other third parties, plaintiff vested title to the thirty-three head of cattle in Friend when it delivered the animals to him and marked the purchase statement describing the cattle with plaintiff's stamp, "Paid in Full." Defendants subsequent sale of these animals for Friend and delivery of the proceeds of sale to Friend was proper and required by the above cited statute. The defendant could not withhold the proceeds of a sale from the owner of the property sold unless required to do so by statute or by order of court, neither of which were here involved.
Weaver v. First National Bank, 138 Colo. 83, 330 P.2d 142, relied on by plaintiff is clearly distinguishable from the facts in the instant case.
Judgment affirmed.
CHIEF JUDGE SILVERSTEIN and JUDGE DWYER concur.