Moskovitz v. Lefrancois

GRAY, J.,

pro

tem.

Appellant sued to recover the possession of certain furniture or its value, together with damages for its detention. After trial by the court, respondent recovered judgment for the value of the furniture, less rent due appellant. Claiming that respondent’s cross-complaint stated a cause of action for the conversion of the furniture occurring after the commencement of this action and arguing that such an entirely separate and distinct cause of action is not a proper matter of cross-complaint, appellant assigns as error the overruling of his general demurrer to the cross-complaint. A proper consideration of these matters requires a summary of the pleadings.

The complaint alleged that appellant was entitled to possession of certain furniture of the value of $4,000 which respondent, as owner, had mortgaged to secure her lease of an apartment house owned by appellant; that the mortgage authorized appellant to take possession of the furniture and foreclose upon default in payment of rent; that respondent failed to pay rent of $1120 for April and May, and on May 21st wrongfully removed the furniture from the apartment house and still retains possession although plaintiff has demanded its surrender. The prayer sought possession of the furniture or its value, with damages for its detention. Briefly, the cross-complaint alleged the execution of the

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lease and mortgage, appellant’s ownership of the apartment house, his service upon her on May 17th of a three-day notice to pay rent or quit possession, her surrender of possession of the apartment house, the then accrual of rent of $940, her tender to appellant of the sum of $1120 and demand for return of the furniture, which the sheriff had replevied and delivered to appellant, the latter’s refusal to comply with the demand and to satisfy the mortgage, appellant’s sale, as a pledge, of the furniture to his son for $1140, and the furniture’s value of $6,720. The prayer of the cross-complaint asked damages for conversion in a sum equal to the difference between said value of $6,720 and said accrued rent of $940.

Appellant’s argument is largely based upon the fact that respondent’s affirmative defense is called and is in the form of a cross-complaint. If a plaintiff is not entitled to possession at the commencement of the action, a defendant need not affirmatively allege his right of possession but, under a general denial of plaintiff’s right, may recover such possession, which plaintiff has obtained by a writ issued in such action.