McAllister v. Metzger

to end so as to make a continuous conduit. Such flumes were placed on the ground between the rows of strawberries and connected with the water supply. The water ran along the troughs or flumes and seeped intp the ground through a series of holes bored in the sides.

Plaintiffs also purchased from another source and moved on the ranch premises a five-room cottage. It was placed on mud sills rather than a cement foundation, remodeled, and provided with water, gas and electric service. It is to be noted that neither the cottage nor the flumes were a part of the original sale.

In 1957 plaintiffs defaulted in the payment of the promissory note which was secured by the above-mentioned deed of trust. Defendants thereupon commenced an action for specific performance of the deed of trust and on October 31, 1957, obtained an order appointing one Straener receiver “of all that real property, improvements and crops growing” on the ranch.^[1] Straener was a boxmaker by occupation and had been in the employ of Metzger. Shortly after his appointment as receiver he took possession of the ranch and attached to various articles of personal property located thereon, tags which stated in substance that such property was under the control of a receiver. Among other things, he tagged the aluminum sprinkler system, the flumes and the cottage. Evidence was introduced that Metzger, apparently acting on the advice of his attorney, directed Straener to tag everything on the ranch. Metzger testified that three or four days later the tags were removed from the cottage and certain other items of property which admittedly belonged to plaintiffs.

However, plaintiffs continued to live on the ranch after the appointment of the receiver and remained there until February 1958. On February 25, 1958, the ranch was sold pursuant to the power of sale contained in the deed of trust, defendants being the purchasers at the trustees’ sale. In April 1958, Straener filed with the court his first and final account as receiver which was approved and settled by order of court made on May 2,1958.

Plaintiffs commenced the instant action on February 20, 1958, against Mr. and Mrs. Metzger, Straener, individually and as trustee, and Coast Counties Land Title Co., trustee under the deed of trust. The original complaint sought a decree quieting title to eight items of personal property located on the ranch, including the portable aluminum sprinkling system, and one two-bedroom cottage, but not the flumes. In their answer, defendants Metzger admitted that plaintiffs were the owners of all the personal property except the sprinkling system. No further proceedings were taken until July 20, 1961, over three years later, when plaintiffs moved for leave to file an amended complaint. Their motion was granted.

Pursuant to such leave of court, plaintiffs, on August 15, 1961, filed an “Amended Complaint For Conversion of Personal Property” naming Mr. and Mrs. Metzger as sole defendants, and alleging in substance the following: that “on February 20, 1958, at the time of commencement of this action, and at all times herein mentioned, plaintiffs were the owners” of the following personal property located on the ranch: (1) “ [a] 11 portable irrigation pipe and flumes and appurtenances thereto” and (2) “ [o]ne portable two-bedroom cottage”; that on or about November 1, 1957, defendants took possession of said personal property under a claim that it was part of the real property covered by the deed of trust; that defendants had no right, title, lien or interest in said personal property and the same was no part of the real property; that on February 25, 1958,^[2] defendants sold said personal property and wrongfully converted the same to their own use to plaintiffs’ damage in the sum of $28,000. Defendants in their answer again admitted plaintiffs’ ownership of the cottage, denied all other material allegations of the amended complaint, and raised several affirmative defenses which we need not set forth in detail.^[3]

be construed as a device to circumvent the statute of limitations.^[4] At this point plaintiffs’ counsel stated: “I would like leave to amend so that I can prove a conversion prior to the filing of the suit, which I can assure I have evidence to prove.” The court then observed that while only one date of conversion appeared to be alleged, namely, February 25, 1958, plaintiffs might offer evidence under the allegations of wrongful possession on November 1, 1957. Plaintiffs’ counsel then stated he “would like leave to amend” because plaintiffs were prepared to prove a conversion prior to February 25, 1958. The record does not otherwise disclose the specific details of the amendment thus proposed. The request was repeated in the same general terms. The record at this point shows that plaintiffs’ counsel took the position that the allegations relating to taking possession of the property on November 1, 1957, while not expressly using the term conversion, set forth a conversion in substance and that the court felt they might be so construed.

As a result the court ruled that plaintiffs were “barred from showing or proving any conversion after the filing of your Complaint from and after February 20th. ”^[5] The effect of this was to strike the allegations relating to a conversion on February 25, 1958, as a result of the trustees’ sale.^[6] In

graph 2 of any alleged acts of conversion taking place between November 1957 (the time mentioned in said paragraph) and the date of the filing of the original complaint. Such evidence was received. Plaintiffs have not directed our attention to, nor have we found, any instance in the record where the court excluded evidence relating to events occurring during such period of time. Thus, plaintiffs were not prejudiced in any way by the fact that the pleading was not amended, assuming arguendo that a proper and sufficient motion to amend had been made. Thus, contrary to plaintiffs’ assertion, the court did not disregard their proof and “bind” them to an averment of conversion on February 25, 1958.

Plaintiffs’ claim that there was no judgment on the merits requires no extensive reply. As we have pointed out, the court properly rejected evidence of the alleged act of conversion based on the trustees’ sale, received all offered evidence of acts occurring prior to the commencement of the action, made findings of fact and conclusions of law thereon and rendered judgment. There is simply no basis for plaintiffs’ claim that this was not on the merits.

We turn to plaintiffs’ second contention that there was a conversion as a matter of law of the sprinkler pipe and flumes, and of the cottage. As we have pointed out, the trial court found that the sprinkler pipe and flumes were affixed and appurtenant to the real property so as to be a part thereof and were part of the security of the deed of trust.^[7] The court’s finding that this sprinkling system was a part of the security is supported by the provisions of the deed of trust itself, quite apart from any consideration of the law of fixtures. That instrument provided “ [t]hat any and all . . . sprinklers and sprinkling systems and equipment,... flumes, pipes and pipe lines, now installed on said real property or which may hereafter be installed thereon, and all replacements, repairs or additions thereto are hereby declared to be a part of the real property described in this Deed and subject thereto. ’ ’^[8]

application to the property on tl^e ranch. It is obvious that the above crucial words of the provision are not general words which follow more particularized and specific ones and thus must be construed as restricted in meaning to things of the same kind as those first mentioned. Indeed, nowhere in the entire provision (see footnote 8, ante) is there any such general language following particular terms so as to bring the desired rule into play. Nor do we find anywhere any inconsistency or ambiguity which is an essential prerequisite to invoking the rule. (See Pasadena University v. County of Los Angeles (1923) 190 Cal. 786 , 790 [ 214 P. 868 ]; 17A C.J.S. 173-176; cf. Wagner v. Shapona (1954) 123 Cal.App.2d 451 , 462-463 [ 267 P.2d 378 ].^[9] )

Plaintiffs argue that the sprinklers and flumes do not fall within the deed of trust provision because they were not “installed.” Webster’s Third New International Dictionary gives the following definition for the verb “install”: “to set up for use or service.” Webster’s New International Dictionary (2d ed.) gives: “To set up or fix, as a lighting system, for use or service.” Plaintiffs themselves agree upon such a definition of the term.

The record before us shows that the sprinkler equipment was set up for use on the ranch when the plaintiffs inspected the property prior to the sale, when they went into possession and, even sometime later, when Straener took over as receiver. After taking possession, plaintiffs used the equipment to sprinkle both the strawberries and the pasture. As thus “set up” for use and used, clearly the equipment was “installed” on the ranch. We do not think that it lost its character of installed equipment merely because sections of the pipe were stored on occasions, as for example during the winter. The record also shows that the wooden flumes were “set up” for use. Plaintiffs placed them between the rows of strawberries where they remained as a sprinkling system all during the period of time involved in the instant action.

In view of the foregoing, it is clear that by virtue of the provision contained in the deed of trust, the foregoing property became “a part of the real property” and part of the security of the deed of trust. Since we reach this conclusion, it is not necessary for us to determine whether the sprinkler pipe and flumes were part of the realty under the law of fixtures and apart from the foregoing provision. Straener, the

receiver, was therefore properly authorized to take possession of it and to use it in connection with his management of the ranch. (See footnote 1, ante.) No action on his part contained in this record and occurring during the time period defined by the trial court could possibly constitute a basis for the conversion of such property so as to fasten liability on Stracner or the defendants. We conclude that the trial court’s finding that no conversion occurred as to the foregoing property is amply supported by the evidence.

Plaintiffs claim that the court erred in excluding certain documentary evidence relating to the sprinkler pipe. Some of these were letters between plaintiffs and the broker written both before and after the contract of sale but prior to the closing of the sale which in substance reaffirm the understanding of the parties that the portable sprinkler pipe was to go with the ranch.^[10] The remaining two documents relate to the purchase of the ranch and a portion of the sprinkler pipe by the Metzgers in 1953. It is argued that the trial court should have admitted all of the foregoing documents as extrinsic evidence in aid of the interpretation of the deed of trust provision. We disagree. As we have pointed out, the deed of trust provision was clear and certain. As the court stated in William B. Logan & Associates v. Monogram Precision Industries (1960) 184 Cal.App.2d 12 , 15 [ 7 Cal.Rptr. 212 ], “ [w]here the language of a contract is clear and certain and there is no ambiguity or uncertainty in its application to subject matter or manner of performance, parol evidence is inadmissible to vary its meaning. When reduced to writing, such contract represents a complete integration of previous negotiations and the contractual understanding of the parties.” (See also Molybdenum Corp. of America v. Kasey (1959) 176 Cal.App.2d 357 , 363 [ 1 Cal.Rptr. 400 ].) Actually, in the instant case, plaintiffs were not attempting to explain or show the real meaning of an ambiguous agreement but were attempting to establish that certain property (the sprinkler pipe and flumes) did not fall within the clear and explicit terms of the agreement.

This brings us to a consideration of plaintiffs’ claim that there was a conversion of the cottage. To start

375 [ 139 P. 815 , 51 L.R.A.N.S. 925 ].) The action does not rest upon either the knowledge or the intent of the defendant. (Poggi v. Scott, supra.) In Zaslow v. Kroenert (1946) 29 Cal.2d 541 , 549-551 [ 176 P.2d 1 ], the court said: “The liability of one in possession of real property for the conversion of personal property which he finds upon it, depends, in most cases, upon a determination of whether the conduct of the defendant indicates an assumption of control or ownership over the goods. It is clear that, under some circumstances, refusal of one in possession of real property to permit, upon demand, the owner of chattels which were left there to remove his goods, constitutes conversion. [Citations.] ... To establish a conversion, it is incumbent upon the plaintiff to show an intention or purpose to convert the goods and to exercise ownership over them, or to prevent the owner from taking possession of his property.... Where the conduct complained of does not amount to a substantial interference with possession or the right thereto, but consists of inter-meddling with or use of or damages to the personal property, the owner has a cause of action for trespass or case, and may recover only the actual damages suffered by reason of the impairment of the property or the loss of its use.”

In the instant case, defendants as beneficiaries under the deed of trust were within their rights in seeking the appointment of a receiver to protect the security upon plaintiffs’ default.^[11] Essentially, all that the receiver did was to keep one of his tags on the house for three days.^[12] During all of this time and in fact during practically all of the receivership and until shortly before the trustees’ sale, plaintiffs continued to live on the ranch. No evidence was introduced, however, that defendants or their appointed receiver in fact dispossessed plaintiffs or exerted a physical control over the cottage inconsistent with plaintiffs’ rights. The court below could have reasonably concluded that the

tagging of the cottage represented no more than a statement of intention to make a claim against the property unaccompanied by any hostile act or disturbance of physical possession. (Cf. Kee v. Becker (1942) 54 Cal.App.2d 466 , 471-473 [ 129 P.2d 159 ].) The prompt removal of the tag confirmed defendants’ recognition of plaintiffs’ rights in their cottage. The conflict in the evidence relating to Roberts’ discussions about buying the cottage was resolved in favor of defendants so that they constitute no basis for conversion.^[13] There was no evidence that plaintiffs attempted to move the cottage off the ranch and were prevented from doing so by defendants or the receiver. Indeed, the defendants finally requested plaintiffs to remove the cottage.^[14] Furthermore, although plaintiffs were continuously on the ranch during most of this time, they offered no proof that at any time their physical use of the cottage was interfered with or affected in any way. We think that from all this evidence the trial court could have justifiably concluded that no conversion of the cottage occurred.

The judgment is affirmed.

Bray, P. J., and Molinari, J., concurred.