Wendling Lumber Co. v. Glenwood Lumber Co.

This is an appeal by plaintiff from an order granting defendant's motion for a new trial in an action for damages for the alleged conversion of certain lumber. The order granting the new trial was made by the successor of the judge who presided at the trial of the cause, and was expressly made upon the grounds that the evidence was insufficient to sustain the verdict and that the jury did not follow the instructions of the court. *Page 413

Defendant claims that the order granting a new trial was correctly made for a reason not specified therein, — viz. that the trial court erred in admitting certain evidence. It is true, as claimed by counsel, that in our review of the order we are not confined to the grounds specified therein by the court granting the motion, but will affirm the order if it was correctly made upon any ground upon which the motion was based (see Weisser v.Southern Pacific Ry. Co., 148 Cal. 428, [83 P. 439], and cases there cited), the only limitation being that where the trial court has in its order expressly excluded the ground of insufficiency of evidence as a basis for its action, we will not consider that ground if the evidence was conflicting. We are, therefore, called upon to determine whether the trial court erred in admitting the evidence referred to.

The complaint was in the form ordinarily used in an action for the conversion of personal property, simply alleging the ownership and right to possession by plaintiff of the property on a day named, the wrongful deprival and conversion to its own use of said property by defendant on that day, the market value of said property, a demand for the return of the property, and a refusal by defendant to comply therewith, the consequent damage, and non-payment of any part thereof. By its answer, defendant simply denied each of the allegations of the complaint except the one as to the value of the property, which it admitted to the extent of $4,856.40, which was the amount of the verdict.

The theory of plaintiff's case was that one J.H. Routt, not a party to this action, had obtained such property from plaintiff by means of certain false representations, willfully made for that purpose, relying upon which plaintiff sold and delivered the property to Routt, that defendant received the property from Routt without giving any valuable consideration therefor, and with full knowledge of the fraud by means of which the same had been obtained, and that plaintiff upon discovering the fraud at once repudiated the sale, and, treating it as void because of the fraud, commenced this action for the wrongful conversion of the property. Over the objection of defendant, plaintiff was permitted to introduce evidence in support of this theory. It is the admission of this evidence that is alleged to have been *Page 414 erroneous. The objection urged is that no fraud being alleged in the complaint, the evidence of fraud was incompetent under the pleadings, defendant resting upon the general rule that where fraud is relied on by a party he must allege it. We are satisfied that this rule is not applicable here. It appears to be thoroughly established that where a sale of personal property is procured by fraud, the ownership of the property is not changed and no title passes to the vendee, and the vendor retains his right in the property, unless after discovering the fraud he assents to and ratifies the act of sale, either positively or by such delay as would authorize the inference of assent. (SeeButler v. Collins, 12 Cal. 457; and Amer v. Hightower, 70 Cal. 440, [11 P. 697], and authorities therein cited.) As was said in Butler v. Collins, supra, and approvingly quoted in Amer v.Hightower, supra, "the civil remedies of the party defrauded are clear, viz.: trover, or replevin in the detinet, or trespass or replevin in the cepit, at his election." One who acquires the property from the fraudulent vendee under such circumstances that he cannot be held to be a purchaser in good faith and for a valuable consideration, is in no better position than the fraudulent vendee, and the defrauded party has the same remedies against him that he had against such fraudulent vendee (SeeSargent v. Sturm, 23 Cal. 359, [83 Am. Dec. 118]). It seems clear that in an action brought upon the theory that the vendor is the owner and entitled to the possession of the property, and that the defendant unlawfully withholds possession thereof, or has converted the same to his own use, the general allegations of ownership and right to possession, and unlawfully withholding or conversion are sufficient, and will render admissible proof of any facts sustaining such claim. It is elementary that a plaintiff is not required to anticipate in his complaint any defense that may be made by the defendant. (See Canfield v.Tobias, 21 Cal. 349.) The fact that a defendant owns and holds the property claimed because of a valid sale, or because he acquired the same from a fraudulent vendee, in good faith and for a valuable consideration, is purely a matter of defense, and when in such an action a defendant asserts any such claim, plaintiff can meet it by proof that such sale was void because of fraud, without having made *Page 415 any allegation of fraud in the complaint. This is illustrated by the case of Moore v. Copp, 119 Cal. 429, [51 P. 630], an action to quiet title to land where the defendant set up in defense an agreement of sale, and plaintiff was allowed to introduce evidence in rebuttal showing that such instrument was obtained by fraud, without having alleged fraud in the complaint. The court, after saying that plaintiff could not know, when filing the complaint, that the defendant would answer, nor that, if he did, he would claim under the instrument in question, said that the principle governing the case was that stated in Sterling v.Smith, 97 Cal. 343, [32 P. 320], as follows: "No doubt, when a cause of action rests upon fraud, the facts constituting the fraud must be set up in the complaint; but such was not the case here, for the necessity of proving fraud appeared only after the answer of the defendant. And a plaintiff is in that position with respect to all new matters set up in the answer." The same is, of course, true as to the matters disclosed by evidence in behalf of a defendant properly given under denials contained in the answer. It is not correct to say in a case of the character before us that the plaintiff's cause of action rests upon fraud. It rests upon his ownership of the property and the conversion thereof by defendant, and fraud comes in only in reply to the defense that defendant is the owner by reason of an alleged sale by the plaintiff. Technically, proof of fraud as to such sale was not a part of plaintiff's prima facie case, and was available only in reply to any claim of defendant based on the sale, but this was a mere matter of order of proof. It is the general rule that in actions for the conversion of personal property where the property has been procured by fraud, it is not necessary to allege the fraud, but it is sufficient to declare generally, that the property was wrongfully converted. (See 21 Ency. of Plead. Prac., p. 1087; Salisbury v. Barton, 63 Kan. 552, [66 P. 618];Pekin Plow Co. v. Wilson, 66 Neb. 115, [92 N.W. 176]; Hunter v.Hudson River Co., 20 Barb. 493; Bliss v. Cottle, 32 Barb. 323;Benesch v. Wagner, 12 Colo. 534, [13 Am. St. Rep. 254, 21 P. 706].) In our own case of Amer. v. Hightower, which was an action in replevin, the complaint was apparently destitute of allegation of fraud, and the judgment for defendant was reversed because of the rejection by the lower court of evidence offered *Page 416 by the plaintiff tending to show fraud on the part of defendant in obtaining a bill of sale for and possession of the property. (See, also, Nudd v. Thompson, 34 Cal. 39; Summerville v. StocktonMill Co., 142 Cal. 547, [76 P. 243]; Conner v. Bludworth,54 Cal. 635.) If Burris v. Adams, 96 Cal. 664, [31 P. 565], andBurris v. Kennedy, 108 Cal. 331, [41 P. 458], are at all inconsistent with the views herein expressed, in so far as they are so inconsistent they have been modified by Moore v. Copp,119 Cal. 429, [51 P. 630]. The other cases relied on, with the exception of Virginia Timber etc. Co. v. Glenwood Lumber Co.,5 Cal.App. 256, [90 P. 48], were clearly cases where the plaintiff's causes of action or the defendant's defense strictly rested on fraud, and the general rule requiring the allegation of the facts constituting the fraud was applicable. Albertoli v.Branham, 80 Cal. 631, [13 Am. St. Rep. 200, 22 P. 404], andWetherby v. Straus, 93 Cal. 283, [28 P. 1045], are fair examples of this class of cases, each being a case where the claim of the defendant conceded the validity and completeness of a transfer as between the parties thereto, and it was sought to set the transfer aside or have it declared void in favor of creditors, on the ground that it was made with fraudulent intent. An action brought for the purpose of having a specified conveyance annulled on the ground of fraud would doubtless fall in the same class, but this is not such a case. The decision of the district court of appeal in Virginia etc. Co. v. Glenwoodetc. Co., 5 Cal.App. 256, [90 P. 48], is precisely in point, but we are unable to accede to the views of the learned district court of appeal therein expressed.