DocketNumber: Docket No. 7756.
Citation Numbers: 8 P.2d 1049, 121 Cal. App. 310, 1932 Cal. App. LEXIS 1154
Judges: Gray
Filed Date: 2/29/1932
Status: Precedential
Modified Date: 10/19/2024
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 312 Appellant sued to recover the possession of certain furniture or its value, together with damages for its detention. After trial by the court, respondent recovered judgment for the value of the furniture, less rent due appellant. Claiming that respondent's cross-complaint stated a cause of action for the conversion of the furniture occurring after the commencement of this action and arguing that such an entirely separate and distinct cause of action is not a proper matter of cross-complaint, appellant assigns as error the overruling of his general demurrer to the cross-complaint. A proper consideration of these matters requires a summary of the pleadings.
The complaint alleged that appellant was entitled to possession of certain furniture of the value of $4,000 which respondent, as owner, had mortgaged to secure her lease of an apartment house owned by appellant; that the mortgage authorized appellant to take possession of the furniture and foreclose upon default in payment of rent; that respondent failed to pay rent of $1120 for April and May, and on May 21st wrongfully removed the furniture from the apartment house and still retains possession although plaintiff has demanded its surrender. The prayer sought possession of the furniture or its value, with damages for its detention. Briefly, the cross-complaint alleged the execution of the *Page 313 lease and mortgage, appellant's ownership of the apartment house, his service upon her on May 17th of a three-day notice to pay rent or quit possession, her surrender of possession of the apartment house, the then accrual of rent of $940, her tender to appellant of the sum of $1120 and demand for return of the furniture, which the sheriff had replevied and delivered to appellant, the latter's refusal to comply with the demand and to satisfy the mortgage, appellant's sale, as a pledge, of the furniture to his son for $1140, and the furniture's value of $6,720. The prayer of the cross-complaint asked damages for conversion in a sum equal to the difference between said value of $6,720 and said accrued rent of $940.
Appellant's argument is largely based upon the fact that respondent's affirmative defense is called and is in the form of a cross-complaint. [1] If a plaintiff is not entitled to possession at the commencement of the action, a defendant need not affirmatively allege his right of possession but, under a general denial of plaintiff's right, may recover such possession, which plaintiff has obtained by a writ issued in such action. (Pico v. Pico,
Passing from a consideration of its form to its substance, does the cross-complaint allege facts, which, if true, would *Page 314
prove that right of possession had passed from appellant to respondent? [3] Respondent's surrender of the premises, pursuant to the three-day notice, terminated the lease and appellant's right to rent accruing subsequently. (Costello v.Martin Brothers,
[6] The court found the facts as alleged in the cross-complaint, except as to the sale of the furniture. As to this, it found that appellant, rather than his son, was the purchaser. Appellant argues that, as he was such purchaser, he could have redelivered the furniture to respondent and that, therefore, the judgment for its value, without alternative provision for its return as required by section 667 of the Code of Civil Procedure was erroneous. This argument ignores his testimony that, between his purchase *Page 315
and the trial, he threw away, as worthless, a considerable portion of the furniture. Respondent was entitled to a return of all of the furniture and, if this was impossible, to a judgment for the value of the whole. (Riverside Portland Cement Co. v.Taft,
[7] Appellant claims that certain findings are not supported by the evidence. Since the evidence as to the value of the furniture, as to appellant's retraction of the three-day notice and respondent's surrender of the premises, is conflicting, findings as to such matters cannot be here reviewed. (Peterson
v. First Nat. Bank, supra.) [8] Appellant further argues that the tender of two months' rent was insufficient, because there was then also due other sums secured by the mortgage, to wit, the cost of repair of the premises and cost of storage of the furniture. But the failure at the rejection of the tender to specify these objections and the amount claimed to be due, precluded respondent from so objecting at the trial. (Code Civ. Proc., sec. 2076; Latimer v. Capay Valley Land Co.,
The judgment is affirmed.
Tyler, P.J., and Knight, J., concurred.
A petition for a rehearing of this cause was denied by the District Court of Appeal on March 30, 1932, and an application by appellant to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on April 28, 1932. *Page 316
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Smith v. Royal Manufacturing Co. , 8 Cal. Rptr. 417 ( 1960 )