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District Court of Appeal, Second District, Division 1, California.

GOLDBERG v. LIST et al.†

Civ. 11047.

Decided: January 04, 1937

Feinfeld & Feinfeld and Stick & Moerdyke, all of Los Angeles, for appellant. John W. Carrigan and Harold E. Prudhon, both of Los Angeles, for respondents.

Plaintiff, having been in possession as a purchaser under conditional sales contracts of personal property worth $2,500, appeals from a judgment which does not allow him anything by way of damages for the conversion of his property. Because we are of the opinion that the findings support the judgment and the appeal is presented to us on the judgment roll alone, it becomes necessary to affirm the judgment.

From the findings of fact, it appears that plaintiff had purchased some fixtures and equipment for a restaurant under several conditional sales contracts, placed the property thus purchased in operation and had it in his possession when it was converted by defendants, strangers to the contracts, to their own use. The findings further state that, at the time when the conversion took place, “plaintiff was in arrears in his payments on said conditional sales contracts,” and subsequent to the conversion, the defendants delivered the property to the several sellers upon their demand. Then we have the finding that “by virtue of the plaintiff being in arrears in his payments under said conditional sales contracts, the demand for possession thereof by the vendors, and the return by said defendants of said personal property to said vendors, that plaintiff did not suffer any damages by reason of the conversion of said personal property by said defendants.”

Although the extent of plaintiff's interest in the property taken from him is not revealed, enough appears so that we shall assume for the moment that he had a special interest upon which to stand in an action for damages for its conversion. The measure of his damages we find correctly stated in 65 Corpus Juris, 132, as follows: “A plaintiff having only a special or qualified right or interest may recover the full value of the converted property, as against a stranger having neither title nor right of possession; but, as against a defendant having an interest or right in the property, recovery is limited to the value of plaintiff's interest or right, and to the fair value of the property.” A statement to the same effect is found in 24 California Jurisprudence, 1056, 1057.

The rule that the measure of damages varies according to the defendant is neither arbitrary nor unfair. In the case of an action against a stranger to the title, the owner of the limited interest recovers the full value of the property taken, not only in order to compensate himself for his own loss, but also in order to meet the demands of the owner of the remaining interest. Where the action is against the person having the remaining interest, to avoid circuity of action, only the damages due plaintiff himself need be allowed. These two viewpoints are recognized in Treadwell v. Davis (1868) 34 Cal. 601, 94 Am. Dec. 770; and California Cured Fruit Ass'n v. Ainsworth (1901) 134 Cal. 461, 66 P. 586. In the first of these cases the court stated (34 Cal. 601, at page 606, 94 Am. Dec. 770): “The rule appears to be well settled that in an action by the pledgee against a stranger for the conversion of goods, the plaintiff is entitled to recover the full value of the goods, because he is answerable over to the pledgor for the surplus.” In the later case it was stated (134 Cal. 461, at page 463, 66 P. 586) the right of one “accountable over to another for the goods, is their value at the time of conversion,” but because the defendant was the one to whom he would have to account, a limited recovery was allowed plaintiff “to avoid circuity of action.” A further California authority recognizing the two measures of recovery without, however, suggesting the philosophy back of them, is Booth v. People's Finance, etc., Co. (1932) 124 Cal.App. 131, 12 P.(2d) 50.

Elsewhere we find the right of a plaintiff with a limited interest to recover the full value of converted property recognized, and on the theory we have noted. In Vandiver v. O'Gorman (1894) 57 Minn. 64, 58 N.W. 831, a mortgagor was allowed to recover the full value, “and hold, as trustee, the amount due the mortgagee.” In Harrington v. King (1876) 121 Mass. 269, a conditional purchaser was allowed full recovery, the court stating: “It is settled that a bailee who is responsible over to the owner is entitled to recover the full value of the goods.”

Further cases involving goods purchased on conditional sales contracts where the full value was recovered from strangers, because the plaintiff had an obligation over, are Messenger v. Murphy (1903) 33 Wash. 353, 74 P. 480, and Angell v. Lewiston State Bank (1925) 72 Mont. 345, 232 P. 90. See, also, Morriss v. Knepper (Tex. Civ.App. 1928) 10 S.W.(2d) 1012, and Solberg v. Minneapolis Willys–Knight Co. (1929) 177 Minn. 10, 224 N.W. 271. It appears plain, therefore, that plaintiff should have had judgment for $2,500, as he contends on this appeal, unless there is some offset by which this sum should be reduced.

We find in the reason advanced for permitting one to recover the full value of goods converted, although he is but a purchaser under a contract of conditional sale, a reason for the further conclusion that the return of the goods to the seller may mitigate the damages the purchaser would otherwise suffer. If the return of the goods to the seller lessens the obligation of the purchaser to the seller, which obligation is the reason for allowing the full value of the property as damages, then the purchaser's damages may be mitigated by the return of the property to the seller. This conclusion is supported by authority as well as reason. The court in Harrington v. King, already cited, gave this much recognition to it: “The case shows that the property had not been restored to the owner, and had not come to his use in whole or in part; so that there was no occasion for the application of the rule mitigating damages in such cases.” In Jellett v. St. Paul, M. & M. Ry. Co. (1883) 30 Minn. 265, 15 N.W. 237, the leading case in Minnesota on the problem under consideration, this appears in the opinion: “But in an action by such plaintiff against a stranger, he will be entitled to the full value of the goods, holding the surplus over the amount of his own claim as trustee for the general owner. * * *

“And defendant may show, in mitigation of damages, any lawful application of the property or its avails to the use of the owner, though the latter is not a party to the suit, because the plaintiff is not answerable over in such case.”

The trial court found the ultimate fact on the issue of damages to be that “the plaintiff did not suffer any damages by reason of the conversion of said personal property.” This might well be true, although the property was worth $2,500, if by its return to the owner, plaintiff was released from all further liability on the conditional contracts of purchase. The record, as we have noted, gives us no statement respecting the extent of plaintiff's obligations or rights under the contracts. He may have paid nothing down, remaining obligated to pay $3,000, for all that we know. The findings do declare that the goods were returned to the seller and that plaintiff suffered no damage. As the appeal is presented to us on the judgment roll alone, we must affirm the judgment on this state of the record, for “Findings of the trial court are to receive such a construction as will uphold rather than defeat its judgment thereon, and whenever, from the facts found by it, other facts may be inferred which will support the judgment, such inference will be deemed to have been made by the trial court. * * * The rule has especial application where, as in this case, the appeal is upon the judgment roll alone.” Anglo–California Trust Co. v. Oakland Rys. (1924) 193 Cal. 451, 460, 225 P. 452, 455. See, further, Rosen v. Dawson (1920) 50 Cal.App. 238, 195 P. 63; Hamberger–Polhemus Co. v. Lewin (1929) 101 Cal.App. 704, 282 P. 425.

The judgment is affirmed.

BISHOP, Justice pro tem.

We concur: YORK, Acting P. J.; DORAN, J.