Rector v. Lewis

SLOANE, J.

The parties to this action had entered -into a contract for the exchange of lands. Plaintiff brought' suit to enforce the execution of a deed to the premises which defendants had contracted to convey, and of which plaintiff was in possession. Defendants answered and filed their cross-complaint for a rescission of the contract and for recovery of possession of the land and certain -personal property that went with it, as covered by the contract, to

[169]

gether with damages for waste, the value of crops raised and harvested by plaintiff, and the rental value of the land.

The trial court, by an interlocutory judgment, denied plaintiff the relief sought under his complaint, and gave judgment for defendants on their cross-complaint, decreeing the rescission of the contract for exchange of properties, and awarding the return of possession, with damages to defendants, to be determined on an accounting and on further hearing in the suit. On an appeal to the supreme court (172 Cal. 1, [155 Pac. 75]), the interlocutory judgment was affirmed, and the case remanded for the taking of further testimony as to damages. This appeal is by plaintiff from final judgment for defendants for damages arising from conversion of certain personal property and the use and occupation of defendants’ premises.

The principal point of appellant’s contention is upon a finding of the court that plaintiff had converted to his own use 144½ tons of hay, of the value of $2,890, the personal property of and belonging to defendants, and grown on said real property. It is contended that this finding is not supported by the evidence. The evidence discloses, accepting defendants’ version of it, that there was on the premises, when plaintiff took possession, 11 tons of hay belonging to defendants; that plaintiff, during his possession, raised and harvested 180 tons, making a total of 191 tons; and that 46% tons had been turned over to defendants, leaving 144% tons unaccounted for, upon which the court fixed a valuation of $20 per ton, and gave judgment for defendants for that amount.

The legal question presented is, whether defendants can recover as damages for the use and occupation of their land during the time it was unlawfully detained by the plaintiff, the gross value of the crop raised thereon by plaintiff. It is insisted by appellant that in no event could the recovery be for more than the value after deducting the cost of growing and harvesting the crop, and that the true measure of damages is not the crops grown on the land, but the rental value of the premises. The trial court found that the plaintiff obtained possession of defendants’ land “by seizing and taking it from defendants’ possession, against their consent.” We are not advised as to whether the evidence supports such finding; but at the most, it obtains no support from defend