Paine v. Keszthelyi

This is an action in claim and delivery. Judgment went for defendant and plaintiff appeals.

[1] It is contended, first, that there was no evidence to support the finding of the trial court that respondent was entitled to the possession of the property in controversy in the action, and that appellant was neither the owner nor entitled to possession. There was evidence of the following facts, which was practically undisputed: Respondent was the owner of patent rights protecting the manufacture and sale of certain sound-producing instruments. He entered into a written agreement with one Henriette Coon which, construing it in a general way according to its context, was executed for the purpose of promoting the manufacture and sale of the instruments covered by the patents. Certain parts of the document, which was very lengthy, have a bearing upon the question of the title to the personalty which is involved in this action. For the purpose of carrying out the design of the parties to the instrument, it provided that, within a specified time, Miss Coon would form a corporation in accordance with the terms of a certain schedule attached to it; that upon the signing of the agreement she would

Miss Coon took subscriptions from various persons for the purpose of carrying out the arrangements she had made with respondent, and assembled a considerable amount of money by that method. To some of these “investors,” as

The conditional sales contracts covering the larger part of the workshop equipment, in value, were executed by Miss Coon as the purchaser. Appellant Mary E. Paine was the heaviest “investor” among those from whom Miss Coon procured subscriptions. Before the latter got from Mrs. Paine the money subscribed by her she was having difficulty in making payments on the sales contracts, and she told Mrs. Paine that if the latter would subscribe the amounts necessary to complete the payments she, Miss Coon, according to her testimony, “would have a bill of sale made in her name to protect her interest in it.” Mrs. Paine then paid the necessary money, and, when the payments on the conditional sales contracts were completed, Miss Coon requested the sellers to issue receipted invoices covering the property purchased to Mrs. Paine, and this was done. Miss Coon, also, executed a bill of sale to Mrs. Paine for the entire workshop equipment.

The corporation referred to in the agreement between Miss Coon and respondent was organized, with a board of

[2] Respondent contends that he was the owner of the workshop equipment, and the trial court so found, but it is not necessary for us to pass upon the point. If respondent was entitled to the possession of the property at the time the action was commenced, appellant could not have obtained judgment against him. To succeed in an action for the recovery of specific personal property a plaintiff must have the right to the immediate and exclusive possession of it (5 Cal. Jur. 160, sec. 4). A mere perusal of the statement of facts which we have made demonstrates that respondent had the right to the possession of the workshop equipment at the time of its delivery to him. Nor can we perceive that the right was ever lost. As touching this particular question appellant relies upon a circumstance to which we have not before adverted, but have reserved for mention in this place. At a certain stage in the relations between respondent, Miss Coon, and the corporation which was organized pursuant to the contract between the two natural persons, respondent in writing notified Miss Coon and the board of directors of the corporation that he elected to cancel the contract. The notice pointed out certain particulars in which respondent asserted that the terms of the contract had not been fulfilled and demanded that Miss Coon and the corporation take certain designated steps in order to repair the alleged breach. Toward the close of the paper respondent stated that “unless all of the above stated demands and requirements as set forth in said contract are fulfilled, this will be your notice that sixty days from this date and thereafter, said contract will be cancelled and declared void.” And immediately following this statement he said: “This is intended as a notice of cancellation as provided in said contract.” Appellant takes the position that at the end of the sixty days the contract was canceled and set at naught and that she at once

[3] Upon the commencement of the action, under appropriate proceedings, the sheriff took the workshop equipment into his possession and delivered it to appellant, who sold it. The judgment in favor of defendant was for the value of the property. It is insisted by appellant that the finding of the trial court as to value is not supported by the evidence. Appellant herself alleged in her complaint that the value was as found by the court, and the allegation was expressly admitted by the answer. However, appellant at the trial, without objection by respondent, introduced evidence showing a lesser value than that established by the pleadings and found by the court. . Appellant contends that the court must have found in accordance with this evidence, notwithstanding the state of the pleadings. The point is not tenable. Certainly, if the evidence could be considered at all, the most that can be said is that there was a conflict between the sworn allegation of the complaint, for the pleading was verified, and the testimony, and the court could have found either way. Upon the question whether the evidence could be considered at all, see Welch

The question as to what rights the corporation, or the “investors,” may have in the fruits of the judgment in respondent’s favor is not, of course, involved in the present action.

Judgment affirmed.

Craig, J., and Murphey, J., pro tern., concurred.