73 P. 984 | Cal. | 1903
The plaintiff appeals from the judgment and from an order denying a new trial. In May, 1897, Mclnnis Bros, were the owners of a liquor saloon conducted in a leased' building in Los Angeles, and, as found by the court, were then indebted to the copartners of Goldschmidt Bros, in the sum of $1,115.36, and to said corporation in the sum of $1,500; that said Mclnnis Bros., for the purpose of paying said indebtedness, proposed to said Goldschmidt Bros, and the defendants that they would transfer to them
We do not think it necessary to consider in detail the sufficiency of the evidence to justify the findings specified by appellant. As to each of them there was a material conflict in the evidence. Nor is it contended that the findings are not sufficient to support the judgment, though it is argued that a different judgment might and should have been rendered upon the same facts. It is said that the plaintiff had two remedies for the wrongful acts of the defendants—that they could have brought an action for an accounting, or an action for damages for the wrongful acts of the defendants; that, as defendants refused to manage the property according to the terms of the trust, plaintiff had the right to treat the acts of the defendant as a tort, and recover damages therefor. But appellant further says: “The Goldschmidts occupied a double relation to defendants ; that both they and defendants were trustees and beneficiaries for themselves and each other.” The possession of one trustee, however, is - the possession of all, and each is entitled to the possession to the same extent, and the character of the possession of each is like that of copartners, joint tenants, or tenants in common: See Balch v. Jones, 61 Cal. 234. Prior to the sale made by defendants, neither the plaintiff nor his assignors could have maintained an action in claim and delivery to recover possession of the trust property, or any part of it, from their cotrustee; and, as the trustees were authorized to sell the property, a sale by defendants was not a conversion. Appellant’s contention that the evidence was sufficient to maintain an action in trover cannot be sustained. If any additional reasons for our conclusion were required, it may be added that, the property delivered by Mclnnis Bros, in trust included the business of said firm conducted in a building occupied under a lease which included certain personal property of the lessor, and a leasehold of real estate is not the subject of an action
The question whether defendants were authorized to sell the property on credit might be material in an action for an accounting, but here there is no allegation that a sale was made. The allegation is that defendants took exclusive possession, and converted the property and business to their own use; that the value thereof was $3,000, and plaintiff’s damages $1,400. None of the several cases cited by appellant have any application to this ease. As to what constitutes conversion, in its general application, there is no controversy. The case of People v. Van Ness, 79 Cal. 88, 12 Am. St. Rep. 134, 21 Pac. 554, was the case of a state officer who retained certain moneys received by him as such officer under a claim of right; but the state was not a cestui que trust or beneficiary under a trust, but a principal, and the officer its agent. Another was that of a factor who had disregarded the instructions of his principal. Others were bailees for hire. In all, the plaintiffs had the legal title. Counsel quote largely from Chetwood v. California National Bank, 113 Cal. 414, 45 Pac. 704. In that ease Chetwood, the plaintiff, was a stockholder in the bank, and brought the action—the corporation refusing to sue—to recover a large sum for the use and benefit of the corporation. The complaint was in form and was entitled a bill in equity for an accounting and settlement of a trust, but contained “nothing more than a charge ex delicto against certain directors for a breach and nonperformance of their duties” by the three directors who constituted the executive committee, who, not regarding their duties, “and contriving together to injure and deceive the said corporation, neglected and omitted, etc.,” and prayed that the defendants Thomas, Thompson and Wilson be held to an accounting of their said trust, that they restore the sum of $400,000, etc. The court made an “order of judgment” for the plaintiff, but the court was
It is further said by appellant that the court erred in permitting various witnesses to testify as to their failure to conduct the business of the saloon at a profit; but, in view of our conclusion that the judgment of the court should be affirmed upon grounds already stated, the exclusion of the evidence would not have benefited the plaintiff,- nor did its reception injure him.
Lastly, it is contended by appellant that the court failed to find upon the following allegation of paragraph 7 of his complaint: “That defendants refused to recognize the rights of Goldschmidt Bros, in the business and property and the management thereof, and took exclusive possession of the
The judgment and order appealed from are affirmed.