Goldberg v. List

[391]

CURTIS, J.

This action was instituted by the plaintiff, a conditional vendee of certain personal property consisting of trade fixtures and restaurant equipment, worth $2,500, covered by several conditional sales contracts, for damages for the conversion of said property by defendants, strangers to said conditional sales contracts. At the time of said conversion, the vendee was in arrears in the payment of instalments due upon said property, and subsequent to said conversion, the property, upon the demand of the conditional vendors, was turned over to them by the defendants. Judgment was entered in favor of the defendants upon a finding that plaintiff had suffered no damage by reason of said conversion. An appeal is taken by plaintiff from the judgment against him on the judgment roll alone, and the question, therefore, presented is whether or not the findings of the trial court will support the judgment.

The findings show that plaintiff, as lessee of two of the defendants, List and Stevenson, was in possession of a certain storeroom located in a building, part of which was used as a hotel. The court found that while plaintiff was in possession and occupation of said premises, but after he had ceased operating the restaurant business, the defendants “without cause, wrongfully, forcibly, unlawfully, wilfully and maliciously entered upon and took possession of said demised premises, together with the fixtures and equipment therein contained, against the will and without the consent of plaintiff . . . and converted said personal property to their own use ...” The trial court further found that “after the conversion of said personal property by the defendants, and their refusal to return said property to plaintiff upon demand, said defendants delivered, upon demand of the vendors thereof, said personal property then being purchased by plaintiff on conditional sales contracts to the various persons from whom plaintiff had purchased same under said conditional sales contract”, and that “by virtue of the plaintiff being in arrears in his payments under said conditional sales contracts, the demand for the possession thereof by the vendors, and the return by said defendants of said personal property to said vendors, plaintiff did not suffer any damages by reason of the conversion of the personal property by said defendants”.

[392]