Peerless Insurance & Brokerage Co. v. Dwyer Equipment Co.

HOUSER, J.

This is an appeal by defendant Dwyer Equipment Company from a judgment rendered against it in an action in claim and delivery.

The basic facts appear to be that on a conditional sales contract the plaintiff sold an automobile to one Porter, who left it with one Blake to be painted. The paint job having been completed and no payment having been made therefor, under the then provisions of the law (secs. 3051 and 3052 of the Civil Code) Blake proceeded to enforce the lien which he claimed and thereunder sold the automobile to the defendant Dwyer Equipment Company. The plaintiff company offered reimbursement, which was declined, following iwhieh this action was commenced and which resulted in 'a judgment for plaintiff as against Dwyer Equipment Company.

Appellant specifies as error that the findings and judgment of the trial court were not supported by the evidence, and that such findings and judgment are contrary to law.

The findings which are attacked are as follows:

“That plaintiff now is, and at all times in plaintiff’s complaint mentioned has been, entitled to the possession of that certain personal property, more particularly described as follows: (describing the automobile).

“That it is not true that the defendant, Dwyer Equipment Company, was ever the owner of the said property or entitled to the possession thereof, . . . ’’

Attention is especially directed by appellant to that part of such findings which is to the effect that at all times mentioned in the complaint plaintiff was

entitled to the possession

of the automobile, • and that it is not true that the defendant Dwyer Equipment Company

was ever the owner of the said property or entitled to the possession thereof.

[143]

Section 3052 of the Civil Code, under which the sale of the automobile was authorized for the nonpayment of the paint job, provides in part that: “If the person entitled to the lien ... be not paid the amount due and for which said lien is given, within twenty days after the same shall have become due, then such lienholder may proceed to sell said property, ...”