Vuich v. Smith

SCOTT, J., pro tem. Respondent leased an apartment building from appellant for a ten-year term commencing in 1920, and gave appellant a chattel mortgage on the furniture to secure payment of rent. On October 9,1925, with respondent’s consent, appellant took over the active management of the apartment house, rendered accounts to respondent, but refused to turn over the building and furniture until the latter paid him the amount he claimed was due on account of rent a,nd repairs. Respondent on January 18, 1929, brought an “action for conversion of property” and recovered judgment for $5,000 against appellant. The complaint set out the leasehold interest, valued at $2,000, and the furniture, valued at $10,000, alleged that appellant converted them to his own use without respondent’s consent, on October 9, 1925, and refused to return them on demand, June 1, 1928, claiming trust and confidence on his part and fraud and deceit on the part of appellant.

At the conclusion of. the trial the court found in effect: (1) that on October 9, 1925, respondent owned and possessed the leasehold interest and furniture; (2) that they were worth $5,000; (3) that appellant with intent to convert them offered to take them over and manage them for respondent’s benefit; (4) that respondent trusted him and (5) allowed him to take them over; (6) that respondent had no means of knowing that appellant claimed the premises except as his agent or trustee until June 15, 1928, and (7) on that date demanded their return, which appellant refused; (8) that appellant converted the leasehold and personal property on October 9, 1925; (9) that the lease was never canceled, and (10) that respondent owed appellant no rent—together with three other paragraphs not material to this appeal.

The findings of the trial court are uncertain and contradictory in matters which are material to the determination of the case, and for that reason the judgment must be reversed. Respondent was awarded damages for the “conversion” by appellant, not only of the furniture but also of the leasehold interest, and at the same time the court made find[455]ing IX: “No evidence being offered or presented that the defendant falsely and fraudulently claimed that the leasehold interest, described in finding ‘I’ hereof, between himself and the plaintiff had been canceled by mutual consent of the parties thereto on or about the 9th day of October, 1925, the court finds that said lease was not canceled on said date or at any time or at all.” Plaintiff’s action for conversion or trover was brought to recover damages for the alleged wrongful acts of defendant in connection with the furniture and the lease. Conversion is any act of ownership or exercise of dominion over the personal property of another in defiance of his rights, and trover is the name usually applied to the action for damages for conversion. (24 Cal. Jur. 1021; Dodge v. Meyer, 61 Cal. 405; 65 Cor. Jur. 12.) A leasehold interest is not the subject of an action for trover or conversion (Goldschmidt v. Maier, 7 Cal. Unrep. 162 [73 Pac. 984]; Whayne v. Seamans, 95 Okl. 168 [217 Pac. 859, 864]; 65 Cor. Jur. 18), and plaintiff’s action to recover damages for “conversion” of his leasehold interest was erroneously conceived.