Mortgage Securities Co. v. Pfaffman

JAMES, J.

Appeal from a judgment entered in favor of the defendant.

[384]

The action was brought by the plaintiff to obtain posses-e sion of a certain automobile. In the original complaint filed it was alleged that the plaintiff acquired a lien upon the automobile by reason of a certain chattel mortgage executed by the Chatts; that the mortgage provided that in the event the mortgagors failed to pay the amount of the mortgage debt, plaintiff might take possession of the automobile and proceed to sell the same in the manner provided by law; further, that at the time suit was brought the said debt had matured and remained unpaid. Defendant answered and asserted, in brief, that the automobile had been delivered into his possession by the Chatts and that, at the request of the latter, repairs had been made upon the machine aggregating in value the sum of $349.40, of which sum nothing had been paid but ten dollars, and that the defendant claimed right to the possession and the lien given him by section 3051 of the Civil Code. The cause was tried and the court determined that the lien of the chattel mortgage was superior to the lien of the repairman, and gave judgment to the plaintiff for recovery of the automobile. An appeal was taken to this court, where the judgment was affirmed. A rehearing was granted by the supreme court and a reversal of the judgment entered by the trial court was ordered, it being last determined that the lien of a repairman is superior to that of a mortgagee.

(Mortgage Securities Co.

v.

Pfaffman,

177 Cal. 109, [L. R. A. 1918D, 118, 169 Pac. 1033].) Before the second trial was had, which resulted in the judgment here appealed from, plaintiff filed a supplemental complaint alleging, in effect, that subsequent to the first trial the controversy had been settled by the voluntary delivery of the automobile by the defendant to the plaintiff; further, that after obtaining such possession the plaintiff had proceeded to sell the machine after the giving of thes usual notices. An answer was filed to this supplemental complaint, which raised an issue as to the settlement having been made of the controversy. The second trial was proceeded with, evidence heard, findings made, and judgment entered. As to the matter concerning the delivery of the automobile by the defendant to the plaintiff, the court determined the facts as follows: “That at the institution of this suit the defendant refused to deliver to the plaintiff the said automobile, claiming his right to retain