Garnette v. Mankel

PEEK, J.

This is an action by appellant, J. L. Garnette, against respondent Carl Mankel, for the wrongful conversion of a power shovel. From the judgment denying the relief sought he has appealed.

The record discloses that one Charles Hopper Brown was the lessee of certain mining property in Placer County, California. He executed a sublease to one D. D. Pettigrew, who entered upon the premises and conducted the business of mining chrome ore, under the name of War Metals Development, Ltd., a limited copartnership. Said sublease provided in part: “Should Second Party [Pettigrew] desire to cease and abandon operations hereunder, he may do so at any time upon giving thirty days notice in writing of his intention so to do and, if he shall have kept all the terms and conditions hereof and be not in default in any particular hereunder, he shall have the right to remove his machinery and equipment placed by him upon the premises, within Sixty days after the giving of such notice.” Brown assigned his interests in the primary lease and the Pettigrew sublease to appellant Garnette. Thereafter Pettigrew dealt exclusively with appellant as his lessor. Respondent Mankel was the owner of certain mining machinery, including a heavy duty Northwest %-yard shovel. On May 16, 1942, in consideration of a guaranteed monthly rental and a percentage of the royalties to be derived from the mining operations,

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he entered into an agreement with War Metals Development, Ltd., through Pettigrew, whereby he leased certain equipment, including said shovel, to the copartnership for a term of three years, with an option to purchase. The contract further provided that the equipment was to be used exclusively on said mining premises and that the same should retain its character as personal property; that it should be returned to lessor by the lessee at the end of the term or sooner termination of the lease; that if the lessee should default in any of the provisions of the agreement, or if the mining operations should close or prove unprofitable and the lessor elect to terminate the lease and give thirty days’ notice in writing, said lessor could go upon the premises and retake possession of the equipment. In February, 1943, Pettigrew defaulted on his royalty payments to appellant. On or about May 13, 1943, appellant went into possession of the premises and took over the operation thereof. Meanwhile War Metals Development, Ltd. defaulted on the payments to respondent under the lease for the shovel, and on or about May 9, 1943, respondent, with Pettigrew’s consent, repossessed himself of the shovel, and removed it from the mining property.