Webster v. Mountain Monarch Gold Mining Co.

WILLIS, J., pro tem. Plaintiff, as receiver of Southwestern Engineering Corporation, commenced this action to recover possession of certain mining machinery and equipment or its value, alleged to be the sum of $5,000, from defendant. The record discloses the fact that before trial plaintiff had obtained possession of all the property claimed by process of claim and delivery, and that such possession still continued at the date of decision "and judgment herein. The complaint is in the usual form in such actions, and the only issues created by the answer consisted of the right of possession, the status of the property described in respect to being personal or real, the value thereof and whether the action was barred by the provisions of subdivision 3 of section 338 of the Code of Civil Procedure. After trial the court found that plaintiff was the owner of and entitled to the possession of “that certain personal property” described [452]in the complaint, with the exception of two items which had previously been returned; that the value thereof was the sum of $4,220; that defendant, without right, had held and retained possession “of the hereinabove described personal property”; that demand for the possession thereof had been made by plaintiff and refused by defendant. From its findings the court concluded that plaintiff was entitled to judgment against defendant for the possession of the property or the sum of $4,220, found to be the value of such property, and that “defendant is entitled to take nothing by his answer”. Judgment was accordingly entered in the alternative form for recovery of possession or, in event said personal property cannot be delivered by the defendant to the plaintiff, that plaintiff recover from defendant the sum of $4,220. From this judgment and from the whole thereof this appeal is prosecuted.

Appellant contends (1) that the evidence is insufficient to justify the decision; (2) that the findings are not supported by the evidence; (3) that there is a failure to find on material issues, and (4) that plaintiff is estopped by long delay in asserting any rights to the property in question.

The defendant had opportunity to plead estoppel and failed to do so. Such failure renders that defense unavailable now. (10 Cal. Jur. 654; Mahana v. Echo Publishing Co., 181 Cal. 233 [183 Pac. 800].)

We have at great pains examined the typewritten record, notwithstanding it was not our duty to do so, in order to ascertain what merit, if any, lay in appellant’s claims of insufficiency of the evidence to sustain the decision or support the findings, and such examination shows no merit in such claims. The evidence clearly shows that defendant was withholding possession of the personal property in question from plaintiff, after notice and knowledge that plaintiff was the owner thereof and entitled to its possession under a conditional sales contract with Mt. Whitney Union Mining Company, the buyer, in which contract title was reserved to the seller with right of repossession on failure of the buyer to make payments as provided therein. It is undisputed that the buyer was long in default as to payments, and there is sufficient evidence to support the claim of plaintiff to its possession and that defendant had acquired no