Gardner

Plaintiff appeals from judgment in favor of defendant after trial by the court.

Question Presented

Civil Code section 3440 in its applicability to the transfer to plaintiff of the community assets is not repealed by the Commercial Code.

Record

On April 30, 1966, in a divorce action filed by plaintiff, and then pending, she and Calvin Gardner, her husband, entered into a marital property settlement agreement. She received a promissory note for $45,000 signed by him and secured by a lien on all the property awarded to husband. Prior to the agreement, Calvin purchased from defendant a log loader on a conditional sales contract. Thereafter, on May 2, 1966, Calvin purchased from defendant a water truck, also on a conditional sales contract. On June 30, 1967, defendant repossessed both pieces of equipment for failure to pay the purchase price. On October 24, 1967, both were sold at public sale. The amount received for the log loader was in excess of the amount necessary to pay off the contract balance and expenses of sale. The amount received for the water truck was less than its contract balance. Defendant applied the excess from the log loader sale to the water truck…