Larkin v. Cowert

SHINN, J.

*

The action is by Harry Larkin and Grace Larkin against C. E. Cowert and June Cowert. The complaint alleges that the defendants are indebted to the plaintiffs in the sum of $11,322.85 for carpets and drapes sold and delivered by plaintiffs to defendants. The answer is a denial. The court found that plaintiffs did not sell or deliver carpets and drapes to the defendants; there was no contract between plaintiffs and defendants; defendants did not convert any of the property of the plaintiffs; plaintiffs were not damaged; plaintiffs did not have sufficient interest to sustain an action for conversion. Judgment was for the defendants; a notice of appeal was filed on behalf of Harry Larkin and Grace Larkin.

A brief has been filed on behalf of “Plaintiffs and Appellants.” The defendants have not filed a brief. There was evidence that Harry Larkin died after the action was commenced. There has been no substitution of a representative of his estate as a party plaintiff. No point was made of that fact in the trial.

Although the action was for goods sold to the defendants the case was tried without objection as one for conversion. We proceed to answer the question whether the finding that there was no conversion of the carpets and drapes was a correct one.

C. E. Cowert and June Cowert (to be referred to in the singular), owned a parcel of land in Los Angeles County. Cowert sold the land to Southland Associates and took back a trust deed of $50,000 which contained a subordination clause. Southland Associates sold the property to Larkin-McKim Enterprises, which became a joint venture, GBH, composed of Grace Larkin, Harry Larkin, William E. Larkin and Harry MeKim. GBH borrowed a large sum of money from a savings and loan association upon two trust deeds and built two identical apartment houses on the property, each containing 22 apartments. Harry and Grace Larkin had loaned Larkin-McKim Enterprises $40,000, and in payment of the loan the property was conveyed to them by GBH. The property eventually was sold to Gerald L. Romanik, an attorney, who represented the defendants in the trial.

[29]

Larkin-McKim Enterprises bought draperies for $5,060 which included the cost of fixtures and installation. Hangers for the drapes were fitted to the walls at the windows and the drapes were hung on a rod and could be lifted off the hangers. GBH also bought carpets for $6,937.85. The carpets were laid on smooth concrete floors. They extended from wall to wall and rested upon wooden strips which were glued to the floor. The wooden strips contained up-ended tacks upon which the carpets were laid. All the carpets were laid in this manner and, with the drapes, were installed in the buildings when they became ready for occupancy. There was evidence that the carpets would have a useful life of six or seven years and the drapes a longer life.