196 P. 902 | Cal. Ct. App. | 1921
Plaintiff sued to recover the value of a certain motor-truck, alleging that defendant had unlawfully converted the same to his own use. The value of the truck was alleged to be the sum of $2,000. Judgment was entered in favor of the defendant for the sum of $324.25, with interest and costs, from which judgment plaintiff has appealed.
[1] There was an answer and an alleged cross-complaint in which the transactions concerning the motor-truck had between the plaintiff and the defendant were set out. In it defendant alleged that he took possession of the motor-truck of the plaintiff in a claim and delivery action based upon a condition of a chattel mortgage which was a lien against the truck in his favor. He set forth the facts concerning the mortgage transaction in his alleged cross-complaint and in the prayer thereof demanded judgment in the sum of $1,024.25, with interest and attorneys' fees as being due him upon the mortgage obligation, and further prayed for a decree of foreclosure. The court found the facts generally as they were pleaded in the answer and alleged cross-complaint, determining, however, that the defendant had converted the motor-truck to his own use after obtaining possession thereof, and found, further, that the value of the motor-truck was $700, and offset this value *444
against the debt owing by the plaintiff to the defendant, the resulting figures entering into the judgment being as first above stated. So far as the facts are concerned, the bill of exceptions show that there was evidence to sustain all the findings of the court. The plaintiff objected to any evidence being introduced under the cross-complaint on the ground that it was improperly made a pleading in the action, and consistently insisted upon that point throughout the trial. It may be admitted as sound law that a judgment of foreclosure would not have been proper to be entered as against the plaintiff in his action of conversion. However, the court did not render a judgment meeting the prayer for that particular equitable relief, but took the account of the defendant and adjusted the two debts with the result stated. The cross-complaint set out all of the facts respecting the existence of the mortgage debt. [2] Assuming, as we must, that defendant had converted the mortgaged property to his own use, he thereby waived his mortgage lien, and the plaintiff, by suing in conversion adopted this condition as being established. (Story Isham Co. v. Story,
The judgment is affirmed.
Conrey, P. J., and Shaw, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on April 18, 1921.
All the Justices concurred.