Redwine v. Trowbridge

[764]

STURTEVANT, J.

The plaintiff commenced an action to recover damages for an alleged conversion of his interest in ah automobile. The defendants appeared and filed separate answers. A trial was had before the trial court sitting without a jury. The trial court made findings in favor of the defendants and the plaintiff has appealed under section 953a of the Code of Civil Procedure.

Facts admitted by the pleadings, or found by the court, among others included the following: The defendant Mathews was constable of Santa Bosa township, Sonoma County, California, and the defendant Belden was his bondsman. On the twenty-third day of October, 1925, the plaintiff was the owner of an automobile. On that date the plaintiff and Jones entered into an executory contract of sale. By the terms of that contract there was a conditional sale to Jones and the purchaser paid down $300, -leaving $979.50 unpaid, and of that sum three installments of $88.94 were past due at the time of the attachment. By the terms of that contract title to the automobile remained in the seller until all payments were made; and if the purchaser failed to make his payments on time the seller could at his option, without demand or notice, take possession of the automobile. On the twenty-third day of February, 1926, the defendant Trowbridge in the Justice’s Court commenced an action against

this plaintiff,

Jones and Morris, to recover a judgment for $104.13. On the same day he took out an attachment which was levied on the automobile. On the thirteenth day of April, 1926, he recovered a judgment against the defendant Jones for his demand and costs. On the ninth day of May, 1926, Trowbridge took out an execution which directed the constable to levy on the property of the defendant Jones, and the constable proceeded to levy it and did levy it on the automobile. Thereafter notice was ' duly given and on the seventeenth day of May, 1926, at the sale under execution the automobile was sold to the defendant Trowbridge. On the eleventh day of May, 1926, this plaintiff served on the defendant Mathews a written claim and demand setting forth his title to. the automobile and therein reciting “Demand is hereby made upon you for the payment of the. balance of the purchase price of the aforesaid automobile amounting to the sum of $979.50.” At this point it should be noted that the judgment in the attach