Price v. Hovsepian

DOOLING, J.

Plaintiffs, who are husband and wife, sued in a single cause of action for unlawful eviction and conversion of certain personal property. The court, sitting without a jury, found that plaintiffs had been wrongfully evicted and awarded them as damages therefor $892.50. The court also found that there had been no conversion of their personal property. Plaintiffs and defendant have both appealed from the judgment.

On defendant’s appeal he raises the question that Mrs. Price was not a party to the action. The action was commenced by her husband as her guardian ad litem at a time when Mrs. Price was in fact over 18 years of age and, being married, was an adult under section 25, Civil Code. Before the trial she was ordered substituted as a party in her own right. It does not appear that defendant made any objection to the substitution or how he has been in any manner adversely affected by what at the most was a mere procedural error in the original appointment of a guardian ad litem which was later corrected by substituting Mrs. Price as a party plaintiff in her own name.

The premises rented by plaintiffs from defendant are claimed to have constituted a furnished apartment and defendant argues that under section 1861a, Civil Code, “if rent is not paid for the accommodations, the owner of the accommodations can dispossess and evict the tenant or guest without liability.” However interesting this contention may be. as an abstract question of law it has no application to the facts as proved and found by the court. The complaint alleged and the court found that on or about April 22d, 1948, the plaintiffs and defendant entered into an oral agreement to rent plaintiffs a certain apartment at $40 per month, that $10

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was immediately paid, that it was further agreed that the additional $30 for the first month’s rental should be paid on May 1, 1948, and that the eviction occurred on or about April 28, 1948. These findings are supported by plaintiff husband’s testimony and, although contradicted by defendant’s testimony, are conclusive that no rent was due and unpaid at the time of the eviction.

The sole claim of plaintiffs on their appeal is that the court erred in finding that there was no conversion of their personal property. The only answer to this contention made by defendant is that under section 1861a, Civil Code, defendant had a lien on the personal property for unpaid rent.