Dobbins v. Dandini

AGEE, J. pro tem.* Appellant Lillian R. Dandini is the sole stockholder of appellant Remillard Brick Company, a [467]corporation, and the two are treated as one in this litigation. Respondent W. C. Thompson and his wife are the sole stockholders of respondent Concrete Materials Company, a corporation, and are likewise treated herein as one. The judgment appealed from is based upon findings and conclusions that appellants owe respondent Thompson $9,615 for certain paving, sewer and electrical work and that respondents owe appellants $4,528.72 for gravel wrongfully removed by respondents from property owned by appellant Remillard Brick Company, leaving a balance of $5,086.28 owing from appellants to respondent Thompson. The sole ground of appeal is that the offset allowed was not enough.

By written lease, Remillard Brick Company leased to Concrete Materials Company some 160 acres of land near Pleasanton for the purpose of removing gravel. The rental was based upon the amount of gravel removed, with a minimum rental of $300 a month.

Between the land leased and the county road running between Pleasanton and Livermore was a strip of land owned by Remillard Brick Company which was not included in the lease. Without permission or right, respondents removed or caused to be removed from this strip a quantity of gravel. The amount so removed is the sole question in dispute, both sides agreeing that the valuation of 25 cents per ton is fair.

The gravel was removed from two excavations, referred to as the East Pit and the West Pit. The West Pit was an excavation dug by Thompson. One end of it extended into the unleased strip. The East Pit was dug by one Armstrong and was entirely on the unleased strip. Armstrong removed gravel only from the East Pit, under an agreement with Thompson to pay him for it according to the tonnage removed. Armstrong testified that he removed approximately 18,000 tons from the East Pit. Two invoices from Thompson to Armstrong for 7,514.5 tons and 10,599.4 tons, respectively, were admitted in evidence and Armstrong testified that these covered all of the gravel removed by him from the unleased property. It was on this basis that the trial court, computing the offset at 25 cents per ton, reached the figure of $4,528.72, a mathematical error of 24 cents.

Armstrong was also questioned about two other invoices for 775.95 tons and 274.80 tons, respectively, but he stated that the gravel covered by these invoices was not taken from the unleased property. As against this, appellants produced a civil engineer who made certain calculations from the size