Matthews v. Hamburger

36 Cal.App.2d 182 (1939) RUTH MATTHEWS, Respondent,

v.

LOUIS HAMBURGER et al., Appellants.

Civ. No. 12249. California Court of Appeals. Second Appellate District, Division Two.

December 20, 1939. Joe Orloff for Appellants.

Ernest Eugene Walker for Respondent.

Wood, J.

Defendants have appealed from a judgment in plaintiff's favor for the value of certain household furniture which was wrongfully sold by defendants.

Plaintiff and her husband, Edward B. Matthews, on May 5, 1938, decided to store their furniture and take a trip to San Francisco to visit friends and relatives. They placed their household furniture and furnishings, which was community property, in storage with Birch-Smith Storage Company in Los Angeles and thereafter drove in the family automobile to Huntington Park to visit friends briefly before leaving on their trip to San Francisco. On arriving in Huntington Park plaintiff's husband left plaintiff with friends and drove away, stating he would call for her in an hour or so. The husband did not return but deserted plaintiff and went to Chico to live. Upon leaving plaintiff he sold the furniture to defendants for the sum of $350. Plaintiff did not consent to the sale in writing or otherwise and did not receive any part of the sum paid by defendants. Shortly after purchasing the property from plaintiff's husband, defendant sold the furniture to another party. One of the defendants inquired of plaintiff's husband if he was a married man and was told that he was married but that his wife was not well enough to be present at the sale of the furniture.

[1] Plaintiff bases her claim on section 172 of the Civil Code which is as follows. "The husband has the management [184] and control of the community personal property with like absolute power of disposition, other than testamentary, as he has of his separate estate; provided, however, that he cannot make a gift of such community personal property, or dispose of the same without a valuable consideration, or sell, convey, or encumber the furniture, furnishings, or fittings of the home, or the clothing or wearing apparel of the wife or minor children that is community, without the written consent of the wife."