Kale v. Bankamerica Agricultural Credit Corp.

PULLEN, P. J. This is an appeal from a money judgment in favor of plaintiff and respondent and against defendant and appellant, the appeal being upon the judgment roll alone.

The first cause of action alleged in the complaint was for hay sold and delivered to the defendant at defendant’s request, but apparently no evidence was introduced upon that cause as no findings appear in the judgment roll on that issue.

[115]In the second cause of action it is alleged in substance that for some time prior to January 30, 1932, approximately 1500 head of sheep belonging to one Fusco were on the real property of plaintiff, and that these sheep were subject to a chattel mortgage given to secure the repayment of a promissory note by Fusco to Bankamerica Agricultural Credit Corporation, appellant herein. Prior to the commencement of this action plaintiff had, so it is alleged, at the request of Fusco, furnished hay for the use of the sheep in excess of $1500. Defendant was desirous of moving the sheep from the property of plaintiff to another location some miles distant, but plaintiff refused to allow the sheep to be moved until his feed bill had been paid, whereupon defendant agreed that if plaintiff would allow the" sheep to be moved it would pay the amount due, and plaintiff," relying upon the promise so made, consented to the removal. Defendant paid $1,000 on the account, but has refused to pay the balance thereof. In the answer practically all of the allegations of the complaint are denied.

The findings are that approximately 800 head of sheep were pastured upon real property occupied under lease by Fusco, which property was contiguous to plaintiff. The court found the ownership of the sheep in Fusco, the existence of the mortgage in favor of defendant and' that plaintiff had furnished hay for the sheep at the request of the owner. The court then found: “ . . . That at no time in the said complaint or herein mentioned, had said sheep been in the possession of said plaintiff, and said plaintiff then and there claimed in good faith to be entitled to the possession of said sheep until said sum of $1,587.00' was paid to him in full; that then and there the defendant claimed in good faith that Joe Fusco was entitled to the immediate possession of said sheep without first making said payment or any part thereof; that on or about the said 14th day of February, 1932, in settlement of said conflicting claims the defendant orally promised and agreed with plaintiff that if plaintiff would allow said, sheep immediately to be moved as then and there desired and requested by defendant, the defendant would pay to plaintiff the said sum of