Kertz v. Paris

KAUFMAN, P. J.

Respondent Kertz instituted this action to foreclose a chattel mortgage on appellants’ property. Appellants filed a cross-complaint, which admitted a debt of $10,625.79 owed to the respondent, alleged that respondent committed an act of conversion by transferring property of the appellants of the reasonable value of $14,500, without sale or permission, and asked for damages in the amount of $3,874.21, the difference between the debt and the reasonable value of the property.

This appeal is taken from a judgment rendered on a jury verdict in the action for conversion. The contentions on appeal are that the evidence established a conversion of appellants’ chattels by the respondent as a matter of law and that appellants were seriously prejudiced by the failure of the trial court to give certain requested instructions to the jury.

The facts which are not in dispute are as follows: From

[69]

1953 until 1956, appellants occupied respondent’s building in Redwood City under a lease for a term of 10 years at a monthly rental of $300. Appellants operated a cleaning business and owned all of the fixtures, personal property, and equipment used in the operation of the business. On August 10, 1954, appellants executed a promissory note to the respondent. On the same date, appellants executed a chattel mortgage, securing the note and the lease on the building. The respondent recorded the mortgage. On October 1, 1956, appellants quit the premises pursuant to a written three day notice to pay rent or quit, personally served on them. The personal property belonging to appellants and listed on the chattel mortgage remained in the building.

In October 1956, two new tenants, MeLennon and Rosenstaek went into possession of respondent’s building as tenants from month to month. They paid no rent until February 1957, when they began to pay a monthly rental of $300. MeLennon and Rosenstaek used appellants’ chattels and kept them in repair. Appellants made no demand on respondent for return of the chattels, and did not demand that MeLennon and Rosenstaek cease using the chattels. Respondent never claimed to own appellants’ property, but advised his new tenants that appellants were the owners of the chattels, and instituted this action to foreclose the chattel mortgage.