The pivotal question is whether Mr. LaCoste in the purchasing of these goods was agent for the Inter-Mountain Association of Credit Men or the Bowers-Schweitzer Company.
By the clear terms of the chattel mortgage and extension agreement the court should have decided as a matter of law that the business was to be conducted and operated by the Bowers-Schweitzer Company. (Marnella v. Froman, 35 Idaho 21,204 P. 202; C. S., sec. 6348; Flores v. Stone, 21 Cal. App. 105,131 P. 349; Ely v. Williams, 6 Cal. App. 455, 92 P. 393;Bank of Woodland v. Duncan, 117 Cal. 412, 49 P. 414; 11 C. J., p. 551, sec. 247, notes 98, 99; 11 C. J., p. 399, sec. 1, note 3.) By reason of the assignment given by respondent which antedated the contracting of the indebtedness herein sued upon, the respondent was charged with notice, and, unless objection was made thereto, bound by the acts of the Inter-Mountain Association of Credit Men as its agent in the liquidation of the affairs of the Bowers-Schweitzer Company. (2 C. J., p. 859, sec. 543, and cases under note 78; Seymour v. Oelrichs,156 Cal. 782, 134 Am. St. 154, 106 P. 88; Corbit v. Kimball,107 Cal. 665, 40 P. 1029; Shopbell v. Boyd, 9 Cal. App. 236,98 P. 59; Curry v. King, 6 Cal. App. 568, 92 P. 662.)
It is to be borne in mind that the Bowers-Schweitzer Company did not make an assignment for the benefit of creditors to appellant but that it gave security to appellant as trustees for the creditors to secure the indebtedness due its creditors. Under the terms of the chattel mortgage, *Page 548 before the Inter-Mountain Association of Credit Men could have operated the business itself it would have had to acquire the business. Unless, therefore, the Inter-Mountain Association of Credit Men had taken over this business it was not responsible for the debts of the Bowers-Schweitzer Company. The Bowers-Schweitzer Company being a corporation could only transfer its business to the Inter-Mountain Association of Credit Men by a proper corporate act, the record does not show that this was done. (14a C. J., sec. 2446, p. 531, sec. 2460, p. 541.) There was not sufficient evidence in view of the assignment of its 'claim by the respondent, and the agency in the Inter-Mountain Association of Credit Men thus created, to estop the Inter-Mountain Association of Credit Men from successfully asserting that the Bowers-Schweitzer Company and not the Inter-Mountain Association of Credit Men was the real debtor. Appellant had not taken over the business. The Price Produce and Commission Company, was, because of the assignment of its claim, charged with notice of the acts of its agent and also with notice of the legal status and relationship existing between the Inter-Mountain Association of Credit Men and the debtor and therefore charged with notice of the terms and conditions of the chattel mortgage and the extension agreement. The Inter-Mountain Association of Credit Men, as such, was not operating the Bowers-Schweitzer Company, even though it dictated who should be the manager for the purpose of attempting to liquidate the company's indebtedness. The judgment should be reversed and judgment entered for the Inter-Mountain Association of Credit Men. *Page 549