Hendricksen v. State Subsidiary, Ltd.

PRESTON, J. Plaintiffs sued defendant for possession of a band of sheep and hogs. They took proper steps to claim an immediate delivery, which they secured within a few days after instituting suit. Both plaintiffs and defendant are acting in good faith in asserting the right to possession of the property. Plaintiffs claim under a chattel mortgage conferring the right of possession upon them. Defendant claims as purchaser from one Fred B. Fox. Little, however, can be said in favor.of the good faith of Fox for, as the original owner of the “Fox” or “River” ranch in Madera County, he was also the owner of said herd and had it quartered thereon; likewise he was the agent of defendant and also of its affiliated corporation, California Mutual Building and Loan Association of San Jose; furthermore, he was in debt to both corporations. He conveyed the ranch and livestock to defendant in satisfaction of this indebtedness. At the same time he was also indebted to plaintiffs and soon after the conveyance to defendant, he calmly mortgaged the entire herd to plaintiffs. Hence this litigation.

Defendant, however, must yield its claim to the superior claim of plaintiffs, because it was negligent in leaving Fox in charge of both the ranch and the said livestock without any evidence of change of title to or possession of the chattels. The court below properly held that under such circumstances defendant is estopped to assert its claim over that of plaintiffs. (Washington etc. Co. v. McGuire, 213 Cal. 13, 15 [1 Pac. (2d) 437].) This is true notwithstanding the fact that the consideration for the chattel mortgage was forbearance to sue upon a preexisting debt. (Smitton v. McCullough, 182 Cal. 530 [189 Pac. 686].)

But by no means do these observations complete the story. The action was begun on November 19, 1931. Plaintiffs as noted above, secured possession of the property on or about December 10, 1931. Defendant answered claiming title and right of possession and asked that possession be restored to it but took no steps to secure a redelivery of the property. At this point the sorrow of all the litigants began. The herd had to be pastured and fed and this re[461]quired an outlay of money, to which both plaintiffs and defendant contributed unequal amounts. The case was put on trial February 11, 1932, but findings were not filed until December 13, 1932, and judgment for plaintiffs was not entered until January 3, 1933. However, on May 10, 1932, while awaiting the judge’s decision, the parties stipulated to a sale of the herd. On this date plaintiffs had furnished feed to the value of $755.50 and defendant had, at the special instance and request of plaintiffs, contributed therefor the sum of $2,714.96. The parties did not seem to realize the fact but nevertheless at this juncture the livestock were not worth the amount of the accumulated feed bills. In other words, in ranch parlance, they had “eaten their heads off”. However, the sale was had and it netted only the sum of $1583.85. Pursuant to the stipulation, plaintiffs got from this fund their feed bill of $755.50 and defendant got a pro tanto payment of $828.35 on its feed claim.