Kenny v. Christianson

RICHARDS, J.

This appeal is from a judgment of the trial court in favor of the defendant Morris Christianson in an action instituted by the plaintiff for the recovery of the possession of an automobile, or, in the alternative, for the recovery of $600 in case delivery cannot be had. The complaint was in the usual form employed in actions for claim and delivery, wherein the plaintiff alleged that on June 29, 1925, she was and ever since has been and now is the owner and entitled to the possession of said automobile, describing the same, and that on or about August 22, 1925, the defendant had wrongfully taken and since retained said automobile from the possession of the plaintiff, notwithstanding her demand for the return to her of the possession thereof. The defendant in his answer denied, for want of information or belief, that the plaintiff was the owner or entitled to the possession of said personal property, and denied that he had ever taken wrongful possession of the same, or that his detention thereof was unlawful; but, on the contrary, alleged that from a time prior to the commence

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ment of the action and ever since said time he had been and continued to be the owner of and entitled to the possession thereof. The cause went to trial before the court upon the issues thus presented, and upon the conclusion of the trial the court made and filed its findings of fact and conclusions of law, in the course of which the court found that the plaintiff on or about July 23, 1925, was the owner and in possession of said car, but that on or about said date she had delivered the same to one Pat E. Patterson in the city of Sacramento, where said Patterson was then and there engaged in the business of selling second-hand or used ears, and had instructed Patterson to sell said automobile; and that said car had thereupon been placed upon the premises used by Patterson in the conduct of his business, and, with other cars of said Patterson, was offered and exposed for sale; that the defendant Christian-son, while said car was thus in the possession of Patterson and was being, under his said authority and at his said place of business, offered and exposed for sale, had purchased the said automobile from Patterson on the twenty-second day of August, 1925, and had thereupon fully paid to him the purchase price thereof, and that thereupon Patterson delivered to said purchaser said car, and that Christianson had ever since continued to be the owner and in rightful possession of the same. The court also in its findings expressly negatived the averments of the plaintiff’s complaint to the effect that Christianson’s possession and detention of said personal property was wrongful. As a conclusion of law the court found that the plaintiff was not entitled to any relief in said action. From the judgment accordingly entered the plaintiff prosecutes this appeal.