Ferris v. Cooper

MORTON, J.,

pro

tem.

Plaintiff filed an action of' claim and delivery against defendants for a well-drilling rig and equipment which she alleged defendants had taken possession of without her consent. She secured judgment for its return, or, its value in the sum of $1200 as determined by the trial court, together with $800 damages for its detention.

It appears that plaintiff was indebted to defendant Thompson, and with Thompson’s authorization in October, 1926, gave a chattel mortgage on the well rig and equipment to defendant Cooper for $401. Thompson was indebted to Cooper in excess of the amount of the mortgage. Plaintiff had paid Cooper $100 on this mortgage at the time of the taking of the well rig outfit which was located on a rented lot in Sanger and the tools for same were in a locked shop situated on an adjoining lot. She had previously endeavored to sell the outfit to Thompson, but he could only buy if Cooper would finance him, which Cooper refused to do. Shortly thereafter Thompson wired plaintiff at Oakland for permission to use the tools, which permission was not granted. Cooper then went to Oakland to see plaintiff about the well rig outfit but no definite agreement was reached. Defendants took possession of the well rig about April 16, 1929. The tools were secured by breaking open the shop. Some necessary repairs were made and the outfit put to their own use.

Defendant Cooper appeals contending that he was entitled, under the terms of his chattel mortgage, upon default, to take possession of said personal property and therefore a claim and delivery action would not lie against him. No evidence was offered as to the terms of the note

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secured by the chattel mortgage or that respondent was in default as to said note and chattel mortgage. No evidence was introduced to show a breach of any obligation or promise of the mortgagor. Appellant Cooper therefore has no basis upon which to justify a taking under the terms of his chattel mortgage. We are also unable to find satisfactory evidence upon which to support appellant’s contention that plaintiff instructed him to turn the property over to Thompson and Peterman.

As to appellant being directly involved in the taking possession of the property, we find this testimony on his cross-examination: “Q. Did you turn the rig over to Mr. Thompson? A. Yes. Q. You did, yourself, personally? A. Yes, sir. Q. Did you tell Mr. Thompson to go and break into the shop and get the tools and parts of the rig? A. No, I didn’t know as anybody broke into the shop. Q. Well, did you tell him to go into Mrs. Ferris’ shop and get the rig—the tools and the things that were in there? A. No, I don’t think I did. Q. Well, did you—did you not tell Mr. Thompson that that shop—that that building belonged to you and you had a right to go into your own property? A. Well, I might have said—well, I don’t know—‘I don’t see how she can hold this, have the door locked there and never turn it over, and turn me over the rest of it. How am I going to get what belongs to me’.”