California Machinery & Supply Co. v. University City Syndicate, Inc.

WILLIS, J., pro tem. This cause is before us on an appeal from a second and modified judgment based on modified findings and conclusions. Appeals from the first judgment entered in the trial court and from orders changing and adding to the findings, conclusions and judgment have been heretofore dismissed (3 Cal. App. (2d) 425 [39 Pac. (2d) 853]).

The action is one for possession of personal property, the complaint being couched in the conventional form, with prayer for possession or the alternative of value and for damages for detention. The complaint charges that plaintiff is the owner and entitled to the possession of certain personal property and that defendants “wrongfully and without plaintiff’s consent, took possession of the said property . . . and have withheld and now withhold and detain the said property from plaintiff’s possession”; that on July 2, 1932, “plaintiff demanded the delivery of the above described property but that the defendants have at all times since said date failed and refused to deliver the said property to the plaintiff”. The answers of defendants consist of denials only. The court found the above quoted allegations to be true and ordered judgment for possession or for the value in the sum of $4,000 in case delivery cannot be had, and for the further sum of $6,975 damages for unlawful detention, from which judgment this appeal is taken.

A brief statement of the pertinent and undisputed facts is necessary to determination of the contention made herein by appellant that the evidence is insufficient to sustain such findings and judgment.

On January 30, 1931, plaintiff delivered to one Bogumill under a “conditional agreement of sale” certain oil well drilling equipment, a portion of which is the subject of this action. Bogumill was at the time lessee under an oil lease of certain real property the ownership of which real property and the lessor’s interest in the oil lease thereon came by transfer to defendants about May 11, 1931. On April [68221], 1931, Bogumill assigned to plaintiff his leasehold interest in one parcel of the whole leasehold, but not the parcel on which the oil well herein referred to was located, as additional security on the sales contract. Bogumill, after using the equipment in drilling for a time on the leasehold, defaulted in his payments on the sales agreement, and in July of 1931 plaintiff, in accordance with the terms thereof, began to retake possession of and remove the equipment, and had removed- all except that described in the complaint herein when plaintiff was ordered by a supervisor of the division of oil and gas of the state of California to stop such removal. On July 27, 1931, plaintiff’s attorney notified the division of oil and gas in writing of its intention to remove the balance of this equipment and requested a written consent. To this request the division replied in writing that when plaintiff gave it notice of intention to do the work specified in the writing an approval would be given for removal. The work required was to remove the drill pipe to a depth of 540 feet and to place a solid cement plug in the well from 540 feet to 500 feet, and to cap the 14-inch conductor casing at the surface and leave it full of heavy fluid.