Pacific Concrete Products Corp. v. Dimmick

WHITE, P. J.

In this action, plaintiff, Pacific Concrete Products Corporation, sought and procured the immediate possession of certain personal property under the provisions of section 509 et seq. of the Code of Civil Procedure. During

[835]

the trial it was stipulated by the parties that the property was worth $2,742, and that, in the event of judgment for defendants, plaintiff was unable to restore possession to them. Plaintiff has appealed from a judgment for defendants for $2,742 and costs.

One of appellant’s contentions is that “where the cause of action is in claim and delivery, no authority appears to embrace a claim for damages ...” In the instant action, however, the judgment is not for damages but for the value of the property. “In an action to recover the possession of personal property ... if the property has been delivered to the plaintiff . . . judgment for the defendant may be for . . . the value thereof in case a return cannot be had . . .” (Code Civ. Proc., § 667.)

As stated by appellant in its opening brief, the right to possession by plaintiff at the commencement of the action determines its right to relief in claim and delivery. It follows that appellant’s right to possession of the property at any other time is not in issue. The trial court did not err in excluding evidence respecting appellant’s earlier unrecorded conditional purchase contract with a stranger to this action. The court found, among other things, that it is not true that at the time of the commencement of the action plaintiff was entitled to the possession of said property; and that the allegations of respondents’ affirmative defense are true. In effect, the affirmative defense was that respondents had bought and paid for the property and were at the time of the commencement of the action entitled to possession thereof.

In appellant’s opening brief it is stated that “There is absolutely no evidence in the record to sustain any such purchase from plaintiff of the personal property which is the subject matter of this litigation, or any writing confirming any such arrangement, alleged to be oral and later reduced to writing. No evidence was offered of any such character, and we are convinced none is or was ever in existence.