69 P. 252 | Cal. | 1902
This action is in the nature of trover for the conversion of a barge. Plaintiff had judgment, and the defendants appeal from the judgment and from an order denying their motion for a new trial. The plaintiff is a corporation, and the defendants are copartners, engaged in the boat-building business in the city and county of San Francisco. The barge in question was built by the defendants under an agreement entered into between themselves, as *539 parties of the first park, and said company, as party of the second part, on the eighteenth day of April, 1898, to the effect "That the said Gratto and Reimers, parties of the first part, for the consideration hereinafter named, agree to construct and build for the said party of the second part, a barge, according to the specifications hereto annexed, of the following dimensions, to wit: Length, one hundred and fifty feet; breadth, thirty-four feet; depth on side, molded, six feet and two inches. They also agree to furnish all materials required in completing said hull and pilot-house, do all the blacksmith-work and carpenter-work and painting, and launch said barge in the waters of the bay of San Francisco, on or before the twenty-fifth day of May, 1898. In consideration whereof, the said party of the second part promises and agrees to pay to the said Gratto Reimers, of the first part, the sum of six thousand two hundred and fifty dollars ($6,250.00), United States gold coin, in the following manner: Fifteen hundred dollars ($1,500) on the day of signing this contract; three thousand seven hundred and fifty dollars ($3,750) as the work progresses, and the balance of one thousand dollars ($1,000) at the time said barge is completed and launched." The defendants at once proceeded to build the barge according to the agreement. As the president of the plaintiff company testifies, "they went right ahead with the construction of the barge according to their contract, and fulfilled their contract in first-class shape." The barge was completed about the 25th of May, ready for launching, but at that time there was a balance due and unpaid of $2,850, and the officers of the plaintiff company were unable to raise the money from their stockholders, as the president of the company at the trial testifies: "We have not paid any more money under this contract than I have testified to, and we never had possession of the barge. We still owe this money on the barge." As she was liable to injury from shrinkage in the weather after completion, it was concluded among all parties to have her launched, which was done on June 10th; on which occasion, as testified to by the secretary of the plaintiff company, defendants said to the president of the company, "There she is; when you pay for her you can have her." And further on he testifies, "We have never tendered to them the balance of this *540 money." The barge was constructed for a special purpose, to be used on the Yukon River, in Alaska, where it is customary to carry the freight in the hold, and for that reason the deck was built lighter than on barges that are used in and about the bay of San Francisco, where it appears to be customary to carry the load on deck instead of in the hold. The plaintiff company was unable or unwilling to pay the balance due, and the barge was left upon the hands of the builders, and the season for sending her to Alaska being over, on the 23d of August, 1898, the defendants advertised and sold her at public auction.
The finding of the trial court, "That at all the times mentioned in the plaintiff's complaint, and at the time of the commencement of said action, plaintiff was the owner of and entitled to the possession of said barge," is not sustained by the evidence, but, on the contrary, it is squarely against it. Under the contract it was not to become the owner of the barge until paid for; and it is clearly shown and admitted that the defendants fulfilled their part of the contract to the letter, but that the plaintiff corporation never complied with the terms of its contract, and, therefore, did not become the owner of the barge, and was never in possession or entitled to the possession. In Clarkson v. Stevens,
The finding of the court that at all such times said barge was, and now is, of the value of $6,250 is not sustained by the evidence, but against it. As already stated, the barge was constructed for a special purpose, to be used on the Yukon River, and not suitable for the trade here. At the time she was built there was a rush in building vessels to be used there that season, and her construction hurried in consequence, which caused a considerable waste in building material. The barge was sold over two months after being launched, and after the season for taking her to the Yukon had passed. She was sold at public auction, after notice, for $2,975, and the purchaser offered to forfeit his deposit of one hundred dollars and leave the barge on the hands of the builders, and the builders also offered the barge at that time to the plaintiff company upon payment of the balance due under the contract, which offer was refused. The finding of the court in reference to the value must have been based upon the cost of the construction under the contract, which is not the rule. On the contrary, the rule is, the value at the time and place of conversion is the measure of damages. (Civ. Code, sec.
Notwithstanding the court found that the plaintiff was the owner and entitled to the possession of the barge, it also found that at the time of the alleged conversion of the property *542 "the plaintiff was indebted to the defendants in the sum of $2,850, as a balance due defendants for work, labor, and services done and performed and materials furnished in the construction of said barge for plaintiff, no part of which has been paid by the plaintiff." The findings are clearly conflicting and inconsistent with each other. Under the contract as shown, the plaintiff company did not become the owner, nor was it entitled to possession, until full payment was made, and here it is found that nearly one half of the contract price remained unpaid up to the time of the trial.
Under the facts and circumstances of this case trover will not lie. The plaintiff in trover must have possession or right to the immediate possession. In Triscony v. Orr,
Judgment and order appealed from reversed.
Harrison, J., and Garoutte, J., concurred.
Hearing in Bank denied.