Story v. Christin

EDMONDS, J.

The appellant’s action for the conversion of nursery stock was dismissed by the superior court upon the ground that the complaint does not state a cause of action, and the correctness of that ruling is the only question presented for consideration.

Some years ago, the appellant leased certain real estate owned by the respondents, using it to grow young orange and walnut trees. Dater he contracted to purchase the land for an amount payable in instalments. This contract was replaced by one under which the appellant agreed to pay a larger amount for the land but was given three additional years to make, the payments required. During the time these contracts were in effect, and in accordance with his rights under each of them, he was in possession of the property, using it to grow nursery stock for sale. Upon his failure to pay interest and taxes as he was required to do, the respondents successfully sued to cancel his contract (Ch

ristin

v.

Story,

119 Cal. App. 326 [6 Pac. (2d) 301]), and they subsequently were placed in possession of the land under a writ of assistance. The appellant then brought the present action, alleging that after the respondents reentered upon the property, they prevented him from removing the nursery stock and converted it to their own use.

By his complaint the appellant alleged these facts: The nursery trees were planted by him while he was vendee in possession of the property. They were planted closely together in rows and in such close proximity to each other that it was impossible for them to remain in that position for more than a short period, and thereafter develop and become a part of a producing orange orchard or walnut grove. The vendors of the land knew of the buyer’s intention to sell and remove these trees after a short period of time. At the time of their conversion by the respondents, many trees had been sold on future delivery, and the appellant at the time of the alleged conversion was endeavoring

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to sell the remainder of them. The respondents, and each of them, had full knowledge of these facts, including the sale of trees and contracts for future delivery, and all of the parties understood and intended that the nursery trees should not become permanently annexed to the real estate but should remain the personal property of appellant, to be sold by him for the purpose of planting in orchards.