Pacific Fruit Exchange v. F. E. Booth Co.

KOFORD, P. J.

Plaintiff holds a crop mortgage on the crops of the seasons of 1925 to 1932, inclusive, grown on the ranch of W. J. Smith and wife in Sacramento County. In 1927 defendant, in consideration of money previously advanced, purchased and received from said Smith a part of the pear crop grown on said ranch that year. By this action plaintiff recovered judgment against defendant for the value of the said mortgaged pears after deducting the share-tenant’s part for maturing the same. Defendant appeals.

The complaint was in three counts. The first sets forth the facts in detail, stating a cause of action in conversion, either upon the theory of a violation of the crop mortgagee’s rights or of a violation of a special agreement alleged to have been made between all parties concerned that appellant would hold the pears only for the use and benefit of respondent. The second and third causes of action were common counts

in assumpsit.

It was not necessary for respondent to prove an express promise on the part of appellant in order to recover judgment

in assumpsit.

The law implies a promise to pay for the conversion. The evidence, therefore, supports the findings in favor of respondent upon the common counts.

(Lehmann

v.

Schmidt,

87 Cal. 15 [25 Pac. 161];

Chittenden

v.

Pratt,

89 Cal. 178 [26 Pac. 626];

Corey

v.

Struve,

170 Cal. 170 [149 Pac. 48];

Fountain

v.

City of Sacramento,

1 Cal. App. 461 [82 Pac. 637].)

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