Eastern Outfitting Co., Inc. v. Myers , 39 Cal. App. 316 ( 1918 )

This is an action in claim and delivery for certain furniture. The case was tried under an agreed statement of facts and judgment given against the three defendants, Myers, Goldstein, and Gray, for a return of the property, or for the alternative sum of $750 in case delivery could not be made. Myers, while the tenant of Goldstein, bought the furniture from the plaintiff for the purpose of replacing and renewing articles of furniture in the hotel. Myers' lease bound him to keep the furniture in good and sound condition, and, according to the findings, it was further covenanted and agreed in the lease that all alterations, additions, and improvements which might be added to or placed in the leased premises should be the property of Goldstein and should be surrendered to him with the premises.

Myers' lease was terminated on the first day of March, 1917, and the property was thereupon let by Goldstein to Gray, who, on March 1, 1917, took possession of the hotel and of the property sought to be recovered by this action. Gray had no notice or knowledge that plaintiff claimed the property, and took the property in good faith and for a valuable consideration, and is now in possession of the property as the tenant of Goldstein. Before this action was begun the plaintiff demanded the property from the defendants and delivery was refused.

The character of the transaction between Myers and the plaintiff at the time Myers acquired the property is the vital question in this case. The plaintiff claims as lessor. Its claim in this behalf is founded on nine written instruments. Two of those instruments purport to be forms of leases, and seven of them purport to be forms of supplemental leases. Each purported lease consists of a printed blank, having inserted thereon in the appropriate blanks the description of the article, the price, and the quantity. Each lease contains many blanks not filled out; and neither one of the purported leases is signed by either the lessor or the lessee; neither one of these purported leases is a contract. (Barber v. Burrows,51 Cal. 404; Las Palmas Winery Distillery v. Garrett, 167 Cal. 397, [139 P. 1077].) The papers purporting to be supplemental leases were signed by both parties. Each paper purporting to be a supplemental lease contains the statement: "This lease is supplemental to a lease dated . . . "; the blank is not filled and the paper does not refer to either of the papers which purport to be leases. The purported supplemental leases do not, therefore, include the purported leases and give efficacy to the purported leases, because of the absolute want of reference thereto. The reference to the purported lease being in blank, the reference is a nullity. The record shows there were at least two purported leases and there may have been more. The record contains nothing showing any fact or circumstance pointing to the particular date intended to be inserted in the blanks above mentioned. The purported supplemental lease is not in and of itself a lease. It contains no covenants whatever on the part of the lessor. Each one of the purported supplemental leases is in different language, but each one contains blanks not filled. No term is stated in any one of them. The monthly payments are not stated in any one of them. The total payments are not stated in any one of them. In short, they are nothing but receipts in which the lessee acknowledges himself to be lessee, whereas, in truth and in fact, the papers show that he is not lessee.

When the defendant Myers surrendered the Altoona Hotel to the defendant, Goldstein, these articles were contained in the hotel and were at that time in Myers' possession, and he was exercising acts of ownership over them. Under these facts he was presumed to be the owner. (Code Civ. Proc., sec. 1963, subds. 11, 12, 20); Bickerdike v. State, 144 Cal. 698, 701, [78 P. 270].) The unexecuted lease and the purported supplemental leases do not contain any evidence overcoming such presumption. On the facts as contained in the agreed statement of facts the plaintiff was not entitled to recover. In my opinion the judgment in favor of plaintiff should, therefore, be reversed.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on February 27, 1919.

All the Justices concurred.