207 P. 694 | Cal. Ct. App. | 1922
This is an action brought by the owner of a chattel mortgage to recover damages for conversion of the mortgaged property. Judgment having been entered in favor of defendant, plaintiff appeals therefrom.
The mortgage, which was recorded in the office of the county recorder of Imperial County on the thirteenth day of February, 1920, covered an undivided one-third interest in sixteen bales of cotton of the value of $1,442. The mortgage notes matured May 1, 1920. The balance unpaid thereon at the time of the alleged conversion exceeded one-third of the value of the cotton. The court found that during the months of October and November, 1920, the defendant took and carried away said cotton, and sold and disposed of the same to his own use, pursuant to the terms of a certain agreement dated October 25, 1920, entered into between the defendant and certain other parties, one of which was one of the makers of the notes held by the plaintiff. It is found that, under this agreement, the makers of the notes held by plaintiff were to work on the defendant's ranch and raise cotton. The defendant was to furnish all moneys for the planting, cultivation, and raising of the cotton, and the title of all cotton raised on the land was to remain in the name of the defendant. After payment of all expenses, the makers of the notes were to receive three-fourths of the profits, if any there were, and the defendant one-fourth. There were no profits. The court further found "that the defendant expended in the matter of expense connected with said crop herein referred to, the sum of $2,511.74; that there was received from the sale of the cotton from the first picking, $1,405.15; that there was no deficiency, but there was a loss and no profit." From these facts the court concluded "that the defendant did not convert the said cotton to the plaintiff's damage" in any *622 sum whatever, and that the defendant was entitled to judgment for costs.
On the facts found, it is manifest that the sixteen bales of cotton could not have been any part of the cotton referred to in the agreement of October 25th. The cotton taken and sold by the defendant in October and November could not have been planted and raised in five weeks. The facts found concerning the agreement of October 25th, even if the plaintiff had not been a stranger thereto, were immaterial to the plaintiff's cause of action.
[1] The plaintiff alleged, and the answer denied, that at the time of the alleged conversion, the plaintiff was entitled to possession of the mortgaged property. Upon this issue the findings are silent. Section
The judgment is reversed.
Shaw, J., and James, J., concurred.