D'ALESSANDRO v. Pickford

BARNARD, P. J.

This is an action for damages for conversion of certain personal property, consisting of the fixtures, equipment, utensils, supplies and furnishings of a barber shop and beauty parlor, which had been mortgaged by the plaintiff to his landlord, the defendant. A chattel mortgage covering this property was foreclosed, a judgment being en

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tered in the Superior Court of San Diego County on December 31, 1934. A commissioner was appointed to take possession of the property and sell the same. The sale was postponed and the property was finally sold on March 27, 1935, for the sum of $702. This action was brought on the theory that the defendant converted the property to his own use by entering the premises and making certain changes therein after the date of the judgment and prior to the date- of sale. The complaint alleges that the plaintiff was damaged in the sum of $14,000. The court found in all respects in favor of the defendant and the plaintiff has appealed from the judgment.

The only point raised is that ‘1 The findings of fact are contrary to the evidence.” No particular finding is attacked and no effort is made to analyze or review the evidence with respect to any one finding. In general, the appellant contends that the respondent had no right, prior to the sale, to enter the premises and make any changes in the fixtures installed therein or in any of the property covered by the mortgage. Most of the acts complained of had to do with the installation or alteration of certain plumbing and electric wiring, there being testimony that the changes in the electric wiring were made necessary by the state building code if the premises were again to be used as a barber shop and beauty parlor. All changes were made in order that such use could be continued, and presumably were to the benefit of the appellant as it is reasonable to suppose that the property could be sold to better advantage if it could be again used at that location. While it may be assumed that the appellant would have a right to complain of any acts which had the effect of lessening the sale value of the property, no effort to establish such a fact was made at the trial, the appellant relying on his contention that the respondent had converted the entire property to his own use.

Under the form of action here sought to be maintained it was necessary for the appellant to establish ownership in himself with the right of possession or actual possession at the time of the alleged conversion.