Warwick v. MacChiaroli

CONREY, P. J.

The plaintiff brought this action to recover damages for conversion of certain personal property of plaintiff by the defendants Macehiaroli and Mrs. Brooke. The appeal from the judgment is by Macehiaroli alone.

The facts hereinafter set forth are either established without conflict, or, where the evidence is conflicting, are stated most strongly in favor of respondent. In June, 1924, respondent was in possession of an apartment house in the city of Los Angeles under a lease which had been made by appellant, who owned the real property only. This lease had been made by appellant to one Tolleson, and had passed by various transfers to the respondent Warwick. Defendant Mrs. Brooke had been one of the intermediate owners of the lease. At the time of the transactions now in question, respondent owned the furnishings of the house, subject to a mortgage owned by defendant Mrs. Brooke, and on the mortgage indebtedness there was money due and unpaid.

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The terms of the lease are not in the record. The lease was offered in evidence, but was excluded upon the ground, as stated in the objections of respondent’s counsel, that the leasehold interest in the premises was not in controversy in this action. All parties are in agreement, however, that respondent was in possession of the premises, and of the furnishings as hereinbefore stated, and that respondent was in default both on the rent and on account of the mortgage indebtedness. On June 14th appellant served upon respondent a notice which we may properly assume was the usual three days’ notice to pay rent or vacate the rented premises. Respondent in her testimony admitted that the notice was served, and no question has been raised about its sufficiency.

Respondent neither paid the rent nor vacated the premises. On the morning of June 19th appellant came to the premises. As to what occurred then, respondent says that she “just spoke to him; not a conversation.” Soon after noon she went away and did not return until evening. At the time of her departure appellant was watering the lawn. During the afternoon, and in the absence of respondent, appellant accepted from Mrs. Brooke the amount of the rent due, and left her in possession of the premises. Nothing was said or done about the personal property of respondent, except that a trunk and suitcase and some clothing of repondent were put outside of the house by appellant. Those articles were not part of the property involved in the alleged conversion. In the course of the evening, respondent came back to the house and found the door locked, and Mrs. Brooke spoke to respondent through the window and stated that she could not let respondent in. Respondent called again once or twice at those premises. She testified: “I went back the following Friday for all my goods—the next Friday night I went back for the rest of them. I took the first portion on the Friday night and they put out the rest on Saturday.” Evidently the word “goods” in the foregoing answer does not include the furniture or furnishings of the house, as respondent testified that those never were turned over to her.