Bush Theaters, Inc. v. Symons

BARNARD, P. J. This is an action for damages for conversion of certain personal property and the defendant has appealed from a judgment adverse to her.

The appellant owns a building in San Diego in which are located a theater, certain stores and an office. A previous owner had leased the entire building for twenty-five years from January 1, 1911, to January 1, 1936. On December 29, 1930, Alice N. Bush acquired this lease which had theretofore been assigned several times. For some years before 1930 the Pacific National Theater Company had been oper[206]ating the theater in this building. It continued to operate the theater as a subtenant of Alice N. Bush until October 8, 1934, when it gave up its lease on the theater and transferred the theater equipment to her. On October 20, 1934, she conveyed the theater equipment by bill of sale to the respondent in this action. On the same day she transferred the lease on the building to G. A. Bush and K. G. Bush, who were her father-in-law and husband, respectively. G. A. Bush operated the theater from the time the Pacific National Theater Company ceased to operate it until some time in December, 1934. Thereafter the theater was operated by one Hartman until May 20, 1935. On that day the personal property involved in this action was removed by the respondent to a warehouse. The appellant attached this property at the warehouse for unpaid rent on the building from February to May, 1935, inclusive. The respondent put in a third party claim, the appellant put up a bond and held the property and this action followed.

All of the rent on the building for the period during which Alice N. Bush held the lease was paid, but the appellant contends that by accepting an assignment thereof she became liable for rent for the full term of the lease. The question thus raised need not be considered under our views on the other question presented, namely, whether there is any evidence to sustain the court’s findings that the property in question had been delivered to the respondent and that it is not true that the sale of this property to the respondent was not accompanied by an immediate delivery and an actual continued change of possession, as required by section 3440 of the Civil Code.

With respect to a part of the property attached, consisting of certain office furniture, there can be no question that respondent had been in possession thereof for more than ten years and there is no evidence that Alice N. Bush ever had anything to do with it. The rest of the property consisted of the theater equipment and respondent relies particularly upon the testimony of Alice N. Bush in which she stated “It was in my possession. The Pacific National gave up the lease. I transferred it to Mr. G. A. Bush. The consideration was for him to do with it what he could and reimburse me to the best of his ability because he was in the theater business and I wasn’t.”