Atwood v. Southern California Ice Co.

FINLAYSON, P. J.

This is an action of trover to recover damages for the conversion of certain boxes of apples which plaintiff had delivered to defendant, a warehouseman, for storage in the latter’s warehouse at San Bernardino. Judgment passed for plaintiff. Defendant appeals from the judgment and from the order denying his motion for a new trial—a nonappealable order.

The complaint alleges that plaintiff is the owner of the boxes of apples and entitled to their possession; that he demanded possession thereof from defendant hut that the latter failed and refused to deliver the same, and that defendant

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unlawfully converted the property to its own use. These allegations are denied by the answer. The trial court found plaintiff’s averments to be true, save that the number of boxes converted by defendant is not so great as the complaint alleges.

Appellant claims that the evidence is insufficient to justify the finding that plaintiff made demand before suit, and also the finding of conversion by defendant.

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It must be conceded that a demand by plaintiff before suit and a refusal by defendant were necessary to the maintenance of this action for conversion, for the apples came into defendant’s possession not tortiously but with plaintiff’s consent.

There is evidence in the record showing the following facts: The boxes of apples in question were delivered by plaintiff to defendant for storage some time in October of 1919. Defendant stored the apples in lots, each lot bearing an appropriate number. One of these lots was designated lot No. 392 and another lot No. 433. On March 16, 1920, defendant prepared and plaintiff signed a receipt which recited that on that day plaintiff received from defendant 864 boxes of apples from lot 392 and 134 boxes from lot 433. It is these apples which plaintiff claims were converted by defendant to its own use. The receipt contains this phrase: “Lots Nos. 392 & 433 out.” Plaintiff testified that though he signed this receipt he never received these boxes of apples or any part thereof—that they were only “supposedly drawn out,” and that at the time when the receipt was given he gave to defendant’s local superintendent an order to ship the apples to a firm at Long Beach, but that they never were received by the Long Beach firm. He further testified that he made demands on defendant for the apples upon several occasions but that defendant’s local superintendent always told him that his company did not have them—that they had been eaten by rats. As we read the record, these demands were made orally. The complaint alleges a particular date upon which d.emand was made, viz., September 24, 1920. On that day plaintiff mailed to the Los Angeles Ice & Cold Storage Company, at Los Angeles, a letter in which he set forth the amount of his damages and demanded payment thereof. The manager of the addressee was also the manager of the defendant corporation; but the corporation to which plaintiff addressed his letter, the Los Angeles Ice &