Mission Fixture Co. v. Potter

JAMES, J.

This action was brought to recover damages for the alleged conversion of a certain lot of personal property. The alleged value of all of the property claimed to have been converted was the sum of $337.32. The court in entering judgment in favor of the plaintiff first determined that that recovery should only be for the sum of fifty dollars, which was the value of only a portion of the property described in the complaint. Thereafter a motion was made, under the provisions of section 663 of the Code of Civil Procedure, by the plaintiff that the court enter upon the findings of fact as made a different judgment, and this motion was granted and a judgment for the sum of $320.26, together with costs, was then entered in favor of the plaintiff. Defendant made a motion for a new trial and the same being denied,

[693]

it took this appeal, which is from the judgment, as well as from the order referred to.

The property alleged to have been converted consisted of two lots of gas and electric fixtures which were consigned to defendant and one Fred R Carrel, who were doing business as a copartnership at Santa Barbara under the name of Santa Barbara Electric Company. These consignments were made in July and August of the year 1909. About one year later the partnership existing between the defendant and Carrel was dissolved, Carrel purchasing the interest of defendant Potter and continuing the business theretofore conducted by the copartnership, under the same name. Notice of the dissolution and change was given directly to the plaintiff herein. The consigned goods were goods to be used as samples from which orders might be made to the plaintiff which was a manufacturer of such articles. The consignments were made in such a way as to create a contract of bailment from which the parties derived mutual benefit. On the one hand, the bailees were enabled to exhibit in their store samples of various kinds of fixtures without being put to the expense of paying for such samples, and, on the other hand, the consignor was benefited by the orders which would be received for merchandise of the kind shown by the samples furnished. It was agreed that these fixtures should remain in the possession of the bailees subject to being returned at any time to the bailor upon its demand. After the dissolution of the partnership between Carrel and Potter, Carrel continued in the business and the sample fixtures held on consignment remained with him. They were allowed to remain there for the purposes of the business which was thereafter conducted by Carrel. They were allowed to remain there by the plaintiff because of the benefit which it was presumed would accrue to it through sales to be made by Carrel of fixtures of the kind shown by sample. The trial court by its findings determined that all of the consigned fixtures were left in the possession of Carrel in August, 1910, when Potter withdrew from the firm, and that notice of the dissolution was given to the plaintiff; that the plaintiff continued thereafter its business relations and dealings with the said Carrel ; that thereafter Carrel abandoned the business and all of the stock and materials thereof and left the city of Santa Barbara, leaving only of the two lots of consigned fixtures a small part,