Breznikar v. T. J. Topper Co.

STURTEVANT, J.

This is an appeal from a judgment awarding the plaintiffs $4000 as damages for a malicious tort. The action was tried before the court sitting without a jury. The trial court made findings in favor of the plaintiffs and the appeal is from the judgment entered on those findings. It is the second appeal.

(Breznikar

v.

T. J. Topper Co.,

23 Cal. App. (2d) 298 [72 Pac. (2d) 895].) In the cited ease the facts showing the wrongful acts of the defendants are fully set forth and need not be repeated. As shown by said decision the first judgment was reversed and the cause was remanded to retry the issue of damages only. The defendants have brought up typewritten transcripts including by stipulation the reporter’s transcript on the first trial.

In the plaintiffs’ fourth amended complaint they inserted three different causes of action. The second count is based on the wrongs inflicted on them by the acts of the defendants in maintaining an action in claim and delivery against the plaintiffs. In paragraph four they alleged: “That the business standing, credit and good will of these plaintiffs, due to said wilful and malicious acts of said defendants as aforesaid, was utterly broken up, destroyed and lost, and by reason thereof plaintiffs were compelled to go out of business, lost their stock in trade, assets and good will, all to the damage of plaintiffs in the sum of Twenty-five Thousand ($25,000) Dollars.” After the second trial of the action the trial court made a finding as follows: “The court finds that it is true that the business standing, credit and good will of plaintiffs due to the wilful and malicious acts of defendants T. J. Topper and T. J. Topper Company, a corporation, as alleged was utterly broken up, destroyed and lost and by reason thereof, plaintiffs have lost their stock in trade, assets and good will of their said business and have been damaged thereby in the sum of $4000. ’ ’ The defendants contend that

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plaintiffs had no business standing, credit or good will. The contention was not specifically presented in the trial court. The plaintiffs’ theory was that the acts' of the defendants had resulted in a wrongful conversion of their equity in an established business. The business had been organized by the defendants and operated as their Oakland branch. During the same period of time the defendants had operated a similar place of business in San Francisco. In November, 1931, defendants sold the business to the plaintiffs. The plaintiffs offered evidence showing that they had built the business up. That the business had some good will is shown by the contract of sale executed by the parties when the defendants sold the property to the plaintiffs. The document recites the sale of the property “ . . . together with the good will and title thereto. ...” True it is that during the trial the plaintiffs did not offer to prove a specific value of the good will as an element of their damage. The record discloses two different valuations of the equity of the plaintiffs. By the acts of the defendants the plaintiffs were compelled to make an assignment for the benefit of their creditors. They assigned to the Oakland Credit Men’s Association. By the records of that association it was shown that when it took over the property the assets amounted to $9380.74 and the liabilities were listed at $6511. The latter sum included taxes for the year 1934 which were not due on December 28, 1933, when defendants committed their alleged torts. The list also included $200, being rent for January and February, 1934, but which was not due or payable. It also included the fees of the association, $303.06. That item, of course, was not due. The total of the items not due was $587.36 which deducted from the list of liabilities above mentioned leaves $5923.64. Deducting the liabilities from the assets the equity of the plaintiffs would be $3379.10. Mr. Breznikar testified as to values showing total assets in the sum of $12,-454.60. Deducting liabilities that were due, $5923.64, the value of the plaintiffs ’ equity was $6530.96.