Abbott v. '76 Land & Water Co.

McFarland, J. Action to recover for the wrongful conversion by defendant of certain wheat alleged in the complaint to have been the property of plaintiff, and to have been of the value of three hundred and five dollars. It is averred that the wheat was taken maliciously, and for the purpose of oppression. The jury returned a verdict for plaintiff in the sum of five thousand eight hundred and twenty-seven dollars, for which amount judgment was rendered for plaintiff. Defendant appeals from the judgment, and from an order denying its motion for a new trial.

Of course, all of the verdict over and above three hundred and five dollars—assuming the wheat to be of that value—and seven per cent per annum interest thereon, was for punitive damages, or smart-money; and we see no evidence in the record warranting such a verdict, or any verdict at all not confined to compensation for the actual detriment suffered by respondent on account of the conversion of the wheat.

[609]The admitted facts are that in December, 1885, appeant, being the owner of a certain tract of land, made a lease (or cropping contract) thereof to-respondent for a term* ending. October, 1886. The lease granted the privilege of extending it for two years, and also an option to respondent to purchase the land at a certain price. Beforé the expiration of the first term, a second lease was made by appellant to respondent, which did not state the option to purchase. Under this lease or cropping contract one-fifth of the wheat raised on the land annually was, when sacked, to be the property of the appellant. Respondent contended that under these leases he had the option of purchasing the land under the second lease. During the running of the second lease he offered to purchase the land at the price named in the first lease, the land having greatly increased in value, and appellant denied his right to purchase; and in July, 1888, respondent commenced an action to compel appellant to convey to him the said land. The action was decided in the trial court in favor of respondent, and was, upon appeal, affirmed by this court in January, 1891. (Abbott v. ’76 Land & Water Co., 87 Cal. 323.) In August, 1888, the appellant took the wheat sued for in this present action. It was taken from said leased or cropped land, appellant claiming to own it as one-fifth of the wheat raised that year, and belonging to appellant.

There is nothing to show that the appellant did not, in perfect good faith, litigate respondent’s right to purchase the land from which the wheat was taken. He was advised by eminent counsel that respondent had not such right; and the question presented was one about which lawyers might well differ. (See Abbott v. ’76 Land & Water Co., 101 Cal. 567.) And there was. no evidence which justified the jury in finding that the act of taking the wheat was malicious, or done for the purpose of oppression. Appellant claimed, and in good faith, so far as it appears, that it owned the land and the wheat, and demanded it of respondent, who denied its right to