Wellman v. Forster

BRITTAIN, J.

The defendants appealed from a judgment against them in a suit in replevin for certain bar fix

[360]

tures and furnishings installed in a saloon in Los Angeles under a contract between one Conroy and the Brunswiek-Balke-Collender Company, the plaintiff's assignor. The judgment was for the return of the property claimed-, except a small part concerning which there is no dispute and which the trial court determined could not be removed from the saloon without injury to the realty. The holder of the lease of the realty from whom Conroy and his successors in interest rented the saloon intervened in the action and is satisfied with that part of the judgment protecting the realty from injury.

After the installation of the property Conroy became financially involved, and with the consent of the plaintiff’s assignor, he assigned all his rights under the contract in question to Forster & Stoner, copartners. They in turn approached the brink of bankruptcy and a meeting of their creditors was called. A transfer of the partnership property was made to three trustees, of whom one was M. L. Cruse, who was an employee and who described himself as the credit manager of the plaintiff’s assignor. In violation of instructions given him by the manager of the corporation, he signed the name of the Brunswick-Balke-Collender Company to the assignment, which was also signed by other creditors. The defendants and appellants, other than Forster & Stoner, are creditors claiming under the assignment and the three trustees to whom the assignment was made. By stipulations between the parties subsequent to the entry of the judgment, the appellants waived all claim to the property, which has been delivered to the plaintiff.

The only question to be determined on this appeal, therefore, is whether or not the judgment can be sustained in so far as it awards to the plaintiff the sum of $1,526 as -damages, computed at the rate of two dollars a day during the period of the detention of the property. In the absence of any showing or contention to the contrary, it must be assumed in support of the judgment that there was no consideration for the waiver of claim to the property other than the recognition of the right of the plaintiff to have it in accordance with the provisions of the judgment. If the stipulations showed that possession of the property only had been given to the plaintiff, reserving to the defendants their claim of ownership, some of the questions argued by the