Schmidt v. Bekins Van & Storage Co.

KERRIGAN, J.

This is an appeal by defendant from a judgment in favor of the plaintiff in an action for the conversion of certain personal property.

The facts, so far as they are material to this appeal, are ■as follows: In January, 1911, Marie Knauer borrowed of the plaintiff a certain sum of money, and as security for the indebtedness executed to him a mortgage upon certain personal property. The mortgage was duly recorded in the city and county of San Francisco. In the mortgage it was provided, among other things, that the property should not be removed from the premises at 691 Folsom Street in San Francisco, where it was located, without the written consent of the mortgagee (plaintiff); and in the event of its removal without such consent the whole principal sum found remaining unpaid should become immediately due and payable irrespective of the time for payment specified in the note. It was further provided by the terms of the mortgage that the mortgagee should be entitled to the possession of the property in the event that the principal or interest was not paid in accordance with the terms of the promissory note. On the eighth day of May, 1911, at the instance of the mortgagor the defendant hauled one-half of the mortgaged property to its warehouse on Mission Street, and the other half to a flat on Bush Street, and a few days later this last-mentioned one-half was removed from Bush Street and also placed in defendant’s warehouse, and was there received and stored by the defendant. The whole of the property remained in storage with the defendant from the said eighth and nineteenth days of May, 1911, respectively, and was still in storage with the defendant at the time this case was tried.

The plaintiff herein foreclosed his mortgage prior to the commencement of this action, and being unable to obtain possession of the property, brought this action for the eon-

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version thereof by the defendant. Defendant set up in its answer herein as one of a number of defenses its lien for storage as paramount and superior to plaintiff’s mortgage lien.

In view of the conclusion we have reached in this case it will be unnecessary for us to pass upon but one of the questions discussed in the briefs. That question is, Did the plaintiff consent to the storage of the goods? If he did, it is not disputed, nor could it well be, that the lien of the defendant is superior to his; or, to state the rule conversely and more nearly as it is usually stated in the books, a warehouseman, with notice of the mortgage, has no lien on mortgaged goods stored with him by the mortgagor thereof after default and without the assent of the mortgagee, whose right to the possession of the goods became absolute upon default. (Cobbey on Chattel Mortgages, sec. 464.)