Pacific Concrete Products Corp. v. Dimmick

In this action, plaintiff, Pacific Concrete Products Corporation, sought and procured the immediate possession of certain personal property under the provisions of section 509 et seq. of the Code of Civil Procedure. During

One of appellant’s contentions is that “where the cause of action is in claim and delivery, no authority appears to embrace a claim for damages ...” In the instant action, however, the judgment is not for damages but for the value of the property. “In an action to recover the possession of personal property ... if the property has been delivered to the plaintiff . . . judgment for the defendant may be for . . . the value thereof in case a return cannot be had . . .” (Code Civ. Proc., § 667.)

As stated by appellant in its opening brief, the right to possession by plaintiff at the commencement of the action determines its right to relief in claim and delivery. It follows that appellant’s right to possession of the property at any other time is not in issue. The trial court did not err in excluding evidence respecting appellant’s earlier unrecorded conditional purchase contract with a stranger to this action. The court found, among other things, that it is not true that at the time of the commencement of the action plaintiff was entitled to the possession of said property; and that the allegations of respondents’ affirmative defense are true. In effect, the affirmative defense was that respondents had bought and paid for the property and were at the time of the commencement of the action entitled to possession thereof.

In appellant’s opening brief it is stated that “There is absolutely no evidence in the record to sustain any such purchase from plaintiff of the personal property which is the subject matter of this litigation, or any writing confirming any such arrangement, alleged to be oral and later reduced to writing. No evidence was offered of any such character, and we are convinced none is or was ever in existence.

“In reviewing the evidence on such an appeal all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. It is an elementary, but often overlooked principle of law, that when a verdict (or judgment) is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury (or

In support of the judgment from which the instant appeal was taken, we find in the record before us the following:

John S. Dimmick, one of the defendants, testified that he and his mother are partners doing business under the fictitious firm name of Adobe Engineers; that plaintiff was not on the commencement of the action entitled to possession of the “racks and pallets” (equipment for the manufacture of cement blocks) because plaintiff had sold them to defendants; that defendants had paid for them by delivering $3,200.00 worth of cement blocks; that Nathan D. Gorin, plaintiff’s vice-president and general manager, had told Dimmick where to deliver the blocks; that the blocks had been delivered as indicated on the delivery slips put in evidence; that most of the persons and firms to whom they had been delivered were unknown to defendants, and the blocks were shipped to them on Gorin’s order for the account of Pacific Concrete Products Corporation ; that he understood that all these operations were the business of Pacific Concrete Products Corporation. Defendant first learned of Mr. Gorin’s connection with Pacific Concrete Corporation when the manager of the Produce Branch of the Bank of America introduced them to each other as managers of similar businesses in the latter part of 1952. That at the time of defendants’ purchase of the racks and pallets, he knew that Mr. Gorin was vice-president and general manager, that Laurence Holzman was president and was ill, and he believed that Mr. Walton was secretary-treasurer, and had no active part in the business. Defendants’ arrangement was with Mr. Gorin as such general manager. Defendants’ own truck was sent to plaintiff’s El Monte plant to pick up the racks and pallets. At that time Mr. Gorin told defendant that the corporation owned them, and that he had authority to sell them. Defendant believed Gorin and relied upon his statements and took the racks and pallets in good faith. Defendant did not know that the racks and pallets were being purchased by plaintiff on conditional sale contract.

Gorin testified that he was the vice-president and general manager of the plaintiff corporation; that as such he agreed to sell to defendants the racks and pallets; that at that time

Delvy T. Walton, attorney for plaintiff, stated during the trial that the conditional sale contract referred to had not been recorded before the sale to defendants.

There is substantial evidence in the record supporting the finding that respondents had bought and paid for the racks and pallets and were entitled to possession thereof when the instant action was commenced.

That the record fails to disclose a written confirmation of the oral agreement of exchange of personal properties is of no consequence, since the agreement had been fully performed.

Appellant further contends that its general manager had no power to bind the corporation by such an agreement and states that no corporate agent has the right to sell “vital property . . . without which it could not operate” and that “the power to operate a business is radically different from the authority to sell its essential machinery.” No doubt, that argument was first made in the trial court and we must as