Gordon v. Cohn

SEAWELL, J.

This appeal involves the ownership of property not exceeding in value the sum of $150.

[194]

•Sam Gordon was the owner of a lot in the city of Napa upon which a one-story trade building was erected. Jack Fortney was a month-to-month tenant. During his occupancy for a period of something like a year, he covered the front area of the store with linoleum, amounting to fifty-two square yards, which was cemented

to

the pine floor and he furnished the material for the awning which was attached to an iron frame set in the front of the building. Said iron frame was furnished by the owner of the building. It was fastened to the walls of the building by means of bolts and screws, and it was made to fit the particular space which it occupied. Fortney became insolvent in 1930 and assigned all his property to the secretary of the San Francisco Board of Trade for the benefit of his creditors. On August 5, 1930, said Board of Trade sold all of his said property, including the linoleum and awning to Lewis W. Cohn. Fortney’s lease expired on August 6th. Cohn entered into possession on that day under a two weeks’ lease which expired on August 20th. The day before the lease expired Gordon filed an injunction suit temporarily restraining Cohn from removing said awning and linoleum from the building, which Cohn claimed the right to do on the ground that they were affixed to the premises for the purposes of trade and domestic use only, and could be removed without injury to the building. Cohn, in addition to his answer, filed a cross-complaint, alleging conversion. Said cross-complaint was thereafter stricken out. No complaint is made of the court’s order striking out said cross-complaint. On September 19th, Cohn filed a separate suit for conversion of said property, based on the same facts which would determine the question as to whether said property was movable, the solution of which was also determinative of the ownership of said property. The basic facts of the first case being conclusive as to the rights of the parties in the second action, it was stipulated that the two cases might be tried as one case and only one judgment need be entered. Judgment went for Gordon in both cases.

The question as to whether the linoleum and awning are movable fixtures is the only question in the case. Appellant Cohn (Haskins and Beier being merely agents of Cohn) bases his claim largely upon a letter written by Gordon’s attorney to Cohn, dated August 7th, in which said attorney