Hillhouse v. Wolf

166 Cal.App.2d Supp. 833 (1958) MARTIN HILLHOUSE, Respondent,

v.

VERNON WOLF, Appellant.

California Court of Appeals.

Dec. 26, 1958. Wilbur K. Kessler for Appellant.

Maurice E. Smith and Lerrigo, Thuesen, Thompson & Thompson for Respondent.

DeWOLF, J.

This is an action in conversion. The trial court gave judgment in favor of the plaintiff from which the defendant has taken this appeal.

The facts in this case are not in dispute. In February, 1951, plaintiff sold a ranch to the defendant who then went into possession of it. The sale of the ranch did not include the selling or purchasing of any of the personal property on the premises. At the time plaintiff turned over possession of the ranch there was left behind a sulphuring machine which is the subject matter of this lawsuit.

The defendant first discovered this sulphuring machine several months after taking possession of the ranch. He found it in an old barn surrounded by sweat boxes. The barn in which he found the machine was in a dilapidated condition, so in the fall of 1951 he moved it to a more sheltered place.

In 1952, the defendant repaired the machine and made an addition to it at a cost of about $75. In 1953, the defendant used the sulphuring machine for his own purposes in his farm work. His next and last use of the sulphuring machine was in 1956.

From the time defendant purchased the ranch in February, 1951, the defendant did not see the plaintiff until about May of 1957, at which time the plaintiff appeared and demanded possession of his sulphuring machine. This demand the defendant refused.

On October 10, 1957, the plaintiff filed an action in the municipal court, alleging that the defendant had converted his [166 Cal.App.2d Supp. 835] sulphuring machine. The defendant defended the action on the ground that plaintiff's action was barred by the statute of limitations. The trial court granted a judgment in favor of the plaintiff, and it is from that judgment that the defendant prosecutes this appeal.

[1] The facts of this case clearly show the defendant to have been an involuntary bailee of the sulphuring machine, the machine having been accidentally left in his possession by the plaintiff. (Civ. Code, 1815, subd. (1).) As such the defendant was bound to take charge of the machine. (Civ. Code, 1816.) But the defendant had no right to use the machine without the consent of the owner. (Civ. Code, 1835.) That the defendant did use the machine without the consent of the plaintiff (owner) is conceded.