Hildebrand v. Delta Lumber & Box Co.

PEEK, J.

Plaintiff, as assignee for collection of the Hyman-Michaels Company, a corporation, brought this action against the Delta Lumber and Box Company, a corporation, W. E. Peters and Ray H. Oliver. The Delta Lumber and Box Company (hereinafter called the Delta Company) was family owned; the defendant Peters was its vice-president and manager and his wife was its president. The complaint alleged that Hyman-Michaels Company was the owner and entitled to the possession of certain described lumber located at a sawmill in Mendocino County; that between August 5 and 25, 1942, defendants entered the premises where the lumber was piled and wrongfully took and transported the lumber away and sold and converted it to their own use and benefit; that the reasonable market value of the converted lumber was $4,959.37 for which judgment was prayed against the defendants jointly and severally. Defendants answered denying said allegations and pleaded an estoppel as a separate defense.

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The ease went to trial on May 3, 1943, and was submitted for decision on June 11,1943. On July 16, the court-by a minute entry ordered that plaintiff was entitled to judgment in the sum of $2,091.06 with interest from September 1,1942. Thereafter counsel for the defendants filed a notice of motion to stay, proceedings as to defendant Oliver by virtue of the Soldiers’ and Sailors’ Civil Belief Act. The motion came on for hearing on August 6, and was opposed by plaintiff. On August 20, and before the court ruled on the motion to stay the proceedings, plaintiff filed a dismissal as to Oliver, which reads: “The above entitled action is hereby dismissed as to defendant Bay H. Oliver, and none other.’’ The court on the same day ordered that the action against Oliver be dismissed and that plaintiff recover from the Delta Company and W. E. Peters the sum of $2,091.06, together with interest and costs. The findings of fact and conclusions of law, which were also filed on August 20, recite that the action was dismissed as to defendant Oliver; that Hyman-Michaels Company was the owner and entitled to the possession of 58,296 board feet of redwood lumber and 2,000 board feet of fir lumber; that during the period from August 5, 1942 to August 25, 1942, inclusive, defendants and each of them entered upon the premises where said lumber was piled and wrongfully took possession thereof and transported, sold and converted the same to their own use and benefit; that the reasonable market value of all the lumber so converted was $2,091.06; that plaintiff was not estopped; that it was not true that at the request of plaintiff the defendant Delta Company paid off cerain obligations of Oliver in reliance upon representations made by plaintiff and Oliver that said lumber would be given as consideration for said advances; that the affirmative defense so pleaded by defendants is not sustained by the evidence. Judgment was entered for plaintiff and against the Delta Company and Peters, jointly and severally, for $2,091.06 with interest and costs. Prom the judgment so entered the defendants have appealed.