Maxwell Hardware Co. v. Hoffman
41 S.D. 212
S.D.
1918
Check Treatment
GATE'S, J.

Action for damages for the conversion of a vacuum cleaner and motor. Trial to the court. Judgment for plaintiff. 'Defendant appeals from1 the judgment and from the denial of a new trial.

[1] Appellant’s argument rests chiefly upon the contention that, inasmuch! as he had a lien upon the property for storage charges, the respondent never made a valid) demand for the property, since he did not pay or tender the storage charges, and therefore that appellant was not without justification in failing to deliver it. Prior to such demand, appellant had disposed of the property to a junk dealer and did not have it in his possession at the time of the demand. If he had a lien thereon at the time of its disposal, such lien was thereby extinguished. 'C. C. § 2038. Therefore respondent was under no legal obligation to tender or pay the storage charges as a part of his demand for possession.

[2] But appellant contends that the evidence tends to show that 'by agreement with respondent he had afterwards, and before the beginning of this action, repurchased the property and held it for, and was willing to deliver it to, respondent upon payment of *214his charges. No finding, of fact upon this proposition was made or sought. An assignment of error to the effect that the evidence is insufficient to sustain the findings does not 'bring this matter ■before us for review.

The judgment and order appealed from are affirmed.