Whitaker v. U. C. Express & Storage Co.

KNIGHT, J. This is an appeal by plaintiff from a judgment in favor of defendant in an action in claim and delivery, to recover possession of household furniture.

The ownership of the furniture was not questioned, but at the time the action was commenced the furniture had been in storage in defendant’s warehouse with plaintiff’s knowledge for upwards of seventeen months, and was about to be sold at auction for nonpayment of accrued storage charges amounting to $124.62, and by way of cross-complaint defendant asked for and obtained a judgment establishing its lien covering the amount of the accrued charges. The defendant had taken the furniture from a cottage in Berkeley and stored it [444]in its warehouse at the request of the Western Housing Corporation, the owner of the premises; and the decision in the case turned upon the question of whether plaintiff consented to such removal. The trial court found against plaintiff on that issue, and the main ground urged for reversal is insufficiency of the evidence to sustain said finding. It appears from the record, however, that there is a conflict of evidence on the point, and that the trial court’s finding is supported by the testimony of two witnesses. Therefore, under well-settled rules, the conclusion reached by the trial court on that point is conclusive on this appeal.

The circumstances leading up to and attending the giving of such consent by plaintiff were these: The premises from which the furniture was removed formerly belonged to plaintiff; but more than four years prior to such removal said premises had been sold at trustees ’ sale to the Western Housing Corporation, and it took possession immediately, thereafter paid the taxes and exercised all rights of ownership over the property. The improvements on the premises consisted of a ten-room house, a cottage furnished with the household goods in question, and five garages, and at the time of the sale plaintiff was living in one of the garages, and renting the furnished cottage. Following the trustees ’ sale he was permitted to remain in the garage and keep his furniture in the cottage, there being some sort of an understanding that the Western Housing Corporation would resell the premises to him if and when he was able to finance the repurchase thereof. Meanwhile he continued to look after the property, helped to secure tenants therefor, at times collected the rent for the owner and occasionally deducted therefrom the cost of making repairs. This situation continued for approximately three years, that is, until September, 1933, at which time a dispute arose between the parties concerning plaintiff’s tenancy, and said corporation filed an action to oust him therefrom. But summons was not served for several months. In the meantime, during the following year, 1934, plaintiff was sentenced to the county jail for three months on a misdemeanor charge, not connected in any way with any of these transactions. However, before starting to serve his sentence, plaintiff, as lessor, leased said cottage furnished, under a written lease dated June 1, 1934, for one year to a tenant named Tarr, and collected some of the rents. Upon learning thereof