HOME v. KRAMER

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District Court of Appeal, Second District, Division 2, California.

HOME v. KRAMER et al.*

Civ. 10661.

Decided: January 22, 1936

Mark F. Jones and W. L. Engelhardt, both of Los Angeles, for appellant. Craig & Weller, Thomas S. Tobin, and Charles A. Deffebach, all of Los Angeles, for respondent.

This is an appeal from a judgment in favor of plaintiff entered after the trial judge directed the jury to return a verdict against the defendant, submitting to the jury solely the amount of damage to be assessed.

The conceded facts are:

On March 1, 1933, defendant leased to Nathan Kramer a market building. Among other requirements the lease provided that any fixtures or equity therein placed on the premises by the lessee or subtenant or any fixtures on the premises at the date of execution of the lease should constitute additional security for the faithful performance of the terms of the lease. Concurrently with the execution of this lease the K. & G. Markets, Inc., guaranteed performance by the lessee of all of its terms and conditions. On the same date the lessee subleased a portion of the premises to Jacob Z. Krantman, who in turn permitted K. & G. Markets, Inc., to occupy the property and take possession of the fixtures thereon.

It is agreed that defendant's lien was void as to creditors of the lessee and sublessee.

August 6, 1934, plaintiff was duly appointed trustee in bankruptcy of the K. & G. Markets, Inc., a bankrupt. Claims of creditors of this subtenant were duly filed and allowed by the referee in bankruptcy.

Thereafter defendant, knowing of the appointment of plaintiff as trustee in bankruptcy for the K. & G. Markets, Inc., executed a bill of sale covering the fixtures located on the leased premises to Walter H. Sage, who shortly prior thereto had purchased the real property described in the above-mentioned lease from the defendant. The vendee was fully advised by defendant that plaintiff claimed to be the owner of the fixtures described in the bill of sale.

Defendant relies for reversal of the judgment on three propositions:

First. When the owner of a building leases it, subject to a provision giving him a lien upon the fixtures in the demised premises to secure the rental, which lien is void as to creditors of the tenant, and the lessor thereafter sells the building and transfers to his vendee such title as he has in the fixtures, this act does not constitute a conversion as to the trustee in bankruptcy of the tenant.

Second. The trial court erred in excluding evidence as to the consideration for the bill of sale executed by defendant to his vendee.

Third. The trial court erred in refusing certain instructions requested by defendant on the measure of damage.

The first proposition presented by defendant must be answered adversely to his contention. The law is settled in this state that one who disposes of property belonging to another is guilty of conversion, even though he acts under an honest but mistaken belief that he is the owner of the property. Dodge v. Meyer, 61 Cal. 405, 420 Poggi v. Scott, 167 Cal. 372, 375, 139 P. 815, 51 L.R.A.(N.S.) 925; Horton v. Jack, 126 Cal. 521, 526, 58 P. 1051. In the instant case the defendant evinced his claim to the fixtures adversely to plaintiff, when he executed and delivered to Sage a bill of sale disposing of the property which belonged to plaintiff. The fact that defendant fully advised his vendee of plaintiff's claim is immaterial, in view of the authorities cited, supra.

The second proposition presented by defendant may not be urged in this court, for the reason that either (a) the question to which an objection was sustained was answered by the witness and a motion was not made to strike the answer from the record, thus leaving the testimony before the jury for its consideration, or (b) defendant did not lay the proper foundation in the trial court for review here. Where a question, to which an objection is sustained, does not itself indicate that the answer to it will be favorable to the party seeking to introduce the testimony, before the ruling will be reviewed on appeal by this court, an offer of what is proposed to be proven must first be made to the trial court, so that this court can determine whether the proposed evidence would have been material and beneficial to the party offering it. County of Sonoma v. Hall, 129 Cal. 659, 662, 62 P. 213; Marshall v. Hancock, 80 Cal. 82, 84, 22 P. 61; Grandy v. Southern Pacific Co. (Cal.App.) 49 P.(2d) 1127; Whitelaw v. Whitelaw, 122 Cal.App. 260, 263, 9 P.(2d) 874. In the instant case the questions asked did not indicate the answer anticipated nor was any offer of proof made. Snowball v. Snowball, 164 Cal. 476, 480, 129 P. 784. Therefore the record fails to show error on the part of the trial court in its rulings on the admission of evidence.

The final proposition urged by defendant will not be considered by us because he has failed to observe the provision of rule VIII, section 3, of this court requiring the party alleging error to print in his brief the instructions requested by him and which he claims were erroneously refused by the trial court. Rule VIII, § 3, p. 10, Rules of the Supreme Court and District Courts of Appeal of the State of California.

The judgment is affirmed.

McCOMB, Justice pro tem.

We concur: CRAIL, P. J.; WOOD, J.