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

GUERIN et al. v. KIRST.*

Civ. 16104.

Decided: April 12, 1948

Latham & Watkins, by Richard W. Lund and James W. McNabb, all of Los Angeles, (John G. Evans, of San Francisco, of counsel), for appellants. Frank P. Doherty, William R. Gallagher, Frank W. Doherty and James A. Doherty, all of Los Angeles, for respondent.

In November, 1945, appellants delivered to one Vergil Grove a caterpillar tractor. They found it in May, 1946, in the custody of respondent Kirst who asserted title thereto as an innocent purchaser from Grove. A claim and delivery action was thereupon instituted for the purpose of establishing appellants' ownership and right of possession. Their demands having been rejected by the jury they now demand a reversal of the judgment on the grounds of (1) insufficiency of the evidence; (2) misapplication of the federal Emergency Price Control Act; (3) errors in admitting evidence; (4) misconduct of respondent's counsel, and (5) erroneous instructions to the jury.

On November 5, 1945, appellants as contractors were engaged in a general grading business, and bought, repaired, used and sold tractors and kindred equipment. On that day H. T. Guerin, one of the partners, called upon Grove at Santa Monica and pursuant to negotiations appellants delivered to Grove a used tractor bearing serial number 1 H 7401, herein referred to as tractor 7. As evidence of their transfer of possession of the tractor Guerin wrote by hand a conditional sale agreement which included in the transaction a second tractor and a carryall. The total value of the three items was $23,500, of which $2,500 was paid then by Grove and terms of further payments were specified in the writing herein referred to as Exhibit A1 along with descriptions of the three movables.

It is evidently intended by the parties that Exhibit A should be reduced to typewritten form. After Grove had rejected two typed drafts of the agreement as prepared in the office of appellants, about December 15, they forwarded to him a third instrument (herein referred to as Exhibit B) dated November 7, 1945, entitled ‘Agreement of lease of personal property (with option to buy),’ and required that he sign it or return the equipment delivered to him in November. The pertinent portions of Exhibit B are as follows:

‘1. The lessor hereby agrees to lease to the lessee, and the lessee hereby agrees to rent from the lessors all of that certain personal property described as follows:

‘2. The period of this lease shall be for ten months commencing on the seventh (7th) day of November, 1945, and ending on the seventh (7th) day of August, 1946, and receipt of payments totaling the sum of $3,500.00 is hereby acknowledged to have been received up to December 14, 1945.

‘3. The agreed monthly rental shall be the sum of $2,000 per month payable monthly in advance, commencing on the seventh (7th) day of November, 1945, and continuing on the seventh (7th) day of each and every succeeding month up to and including the seventh (7th) day of July, 1946, and the Balance of $1,075.00 shall be paid on the seventh (7th) day of August, 1946, and the total rentals for said period shall be the sum of $19,075.

‘4. The lessor hereby grants to the lessee the option to purchase said equipment at the expiration of said rental period for a price of $4,425.00 provided that the lessee shall give notice in writing of his intention to exercise said option and which notice must be given to the lessor on or before the seventh (7th) day of August, 1946, and provided further that the lessee's right to so purchase said equipment shall be conditional upon a complete and full performance of his undertakings as herein provided, and also conditional upon the full payment by him to lessor of the rental herein above provided.

‘5. That should lessee exercise said option to purchase said personal property, he shall pay to lessor, in addition to the other sums herein provided, interest at the rate of eight (8) per cent per annum on the sum of $21,000.00 from the seventh (7th) day of November, 1945, to and including the seventh (7th) day of August, 1946, on the basis of the monthly deferred balances, and provided further that in the event of such election, lessee will pay to lessor the amount of repairs and maintenance incurred or paid by lessor in connection with said personal property during the term of this lease.

‘6. Payments shall be made to the lessors at their office at 208 South Linden Avenue, South San Francisco, California.’

At the trial appellants proved without contradiction that they had purchased tractor 7 from Oilfields Trucking Company of Bakersfield on November 10, 1941, and received its bill of sale on the same day. Such document was received in evidence without objection. It was established also without contradiction that appellants had never sold tractor 7; that it was completely equipped; that they had had no transaction with respondent; that they had located it May 31, 1946, in the latter's possession and on June 10 made demand upon him for its return to them; that the value of tractor 7 is $6,000 or $7,000. The answer admitted that its reasonable rental value was $825 per month.

Upon the foregoing uncontradicted evidence of ownership appellants either as conditional vendors or as lessors of tractor 7 were entitled to judgment for the possession of the tractor or, in lieu of its return, to the reasonable value thereof. Code Civil Proc. sec. 667. That they were entitled to damages for its detention after demand for its return there can be no dispute. However, as to the amount of such damages and as to the rule for the admeasurement thereof the parties are at a wide variance and the authorities are at first glance not entirely in accord. By reason of such state of the law it is necessary to review the decisions of this state bearing upon the rule for the measure of damages in actions for replevin.

Section 667 of the Code of Civil Procedure is a part of Chapter 8 in Part II and Title VIII bearing upon trial and judgment in civil actions. Chapter 8 is entitled ‘Manner of Giving and Entering Judgment.’ Section 667 provides: ‘In an action to recover the possession of personal property, judgment for the plaintiff may be for the possession or the value thereof, in case a delivery cannot be had, and damages for the detention.’ Under many authorities the rule for the measurement of the damages suffered by one who has been deprived of the use of a chattel is an amount of money equal to the interest on the value of the property from the time of the demand for its return. Such rule is stated in many decisions which nevertheless adhere to the doctrine that the owner is entitled to the reasonable or usable rental value of his property while it is detained from him, if such rental value exceeds the interest on the value of the chattel. Ruzanoff v. Retailers Credit Ass'n, 1929, 97 Cal.App. 682, 276 P. 156; Brandenburger v. Hanner, 1929, 96 Cal.App. 396, 274 P. 390; Drinkhouse v. Van Ness, 1927, 202 Cal. 359, 379, 260 P. 869; Crawford v. Meadows, 1921, 55 Cal.App. 4, 203 P. 428; Nahhas v. Browning, 1919, 181 Cal. 55, 183 P. 442, 6 A.L.R. 476; Tucker v. Hagerty, 1918, 37 Cal.App. 789, 792, 174 P. 908, 910. However, the preponderance of the authorities is committed to the doctrine that in a claim and delivery or replevin action interest on the value of the property does not furnish adequate compensation for the wrongful detention; and rightly so, for the reason that to be confined merely to interest upon the value of a chattel would enable a wrongdoer to make profit out of his own wrong and would deny to a plaintiff damages which naturally and certainly follow from a wrongful invasion of his rights.

In Tucker v. Hagerty, supra, the court adopted the rule set forth in 34 cyc, 1563: ‘the measure of damages for such detention is the fair rental value of the machine, less the damages which would result to it from the extra wear and tear caused by the use of it while so rented.’ It is argued in the case at bar, as it has been in other actions reported by the appellate courts of this state, that the total allowance for the use of a chattel during the period of its detention is unfair and amounts to punitive damages. In the Tucker case the court declared: ‘There is nothing so starcling in the fact that the rental value allowed by the court amounts to more than the value of the machine as to compel a reversal of the judgment.’

In Drinkhouse v. Van Ness, supra [202 Cal. 359, 260 P. 877] the court held that the plaintiff in a replevin action ‘is not confined to interest as damages, if he can establish the fact that the value of the use of the property of which he was deprived exceeded the interest. * * * He is entitled to recover as damages for the detention the reasonable value of such use during the period he was wrongfully deprived thereof up to the time of the rendition of the judgment’—citing 5 Cal.Jur., page 208; Nahhas v. Browning, supra.

In Stanley W. Smith v. W. M. Pilgrim, 1927, 117 Cal.App. 244, 246, 3 P.2d 573, 574, it was held in an action for claim and delivery that ‘the party aggrieved is entitled to the usable value, regardless of whether or not he be shown to have hired other property to take its place. * * * Where property detained has a usable value, its owner is entitled to recover damages equivalent to the reasonable value of such use during the period he was wrongfully deprived thereof up to the time of the rendition of judgment.’

In Ruzanoff v. Retailers Credit Ass'n of Sacramento, supra, 97 Cal.App. at page 687, 276 P. at page 158, the plaintiff sued for the recovery of certain fixtures and damages for the detention. After citing Drinkhouse v. Van Ness and section 33332 of the Civil Code, the court held that plaintiffs were entitled to compensation for the usable value of the property of which they were deprived regardless of whether or not they hired other property to take its place.

In Ferris v. Cooper, 1932, 125 Cal.App. 234, 237, 13 P.2d 536, 537, plaintiff sued to recover a drilling rig and equipment. Judgment was entered for $1200 as the value of the rig and $800 for its detention for a period of seven months. The court held that notwithstanding that the ordinary measure of damages for wrongful detention is interest yet where ‘property has a usable value which exceeds the lawful rate of interest this rule has no application. In such a case the successful party is entitled to recover, as damages for the detention, the value of such use during the period that he was wrongfully deprived thereof. And this value is to be estimated by the ordinary market price of the use of such property.’ The court approved of damages in excess of $100 per month for the detention of property valued at only $1200. Applying the Apparent Exception to the Rule

The seeming exception to the rule which allows the aggrieved party the right to damages in the amount of the reasonable usable value of personal property wrongfully detained was first expressed by this court in Mutch v. Long Beach Imp. Co., 1920, 47 Cal.App. 267, 190 P. 638. The facts of that case clearly show that the court did not reject the rule established by the foregoing authorities. That action was to recover possession of an automobile which had been taken under attachment in February, 1916. Although Mrs. Mutch subsequently claimed to be the owner she made no demand at first upon defendant for its possession nor did she make a third party affidavit of ownership upon the sheriff until eight months after the levy. On November 16 she instituted her action to recover the automobile and damages for its detention. Pending the trial of the action the automobile was delivered to her and subsequently judgment went in her favor for possession of the car and damages for its detention in the sum of $1500. The amount of damages was derived by computing the rental value of the car from the date of its attachment to the date of its redelivery to her, a period of 86 1/2 weeks at $15 per week, making a total of $1297.50, and in addition thereto $203.15 for its depreciation. In holding that the trial court exceeded all reasonable bounds in assessing the damages suffering by the plaintiff this court pointed out the facts which made the allowance by the trial court a departure from the general rule. The automobile was a pleasure car and after its taking was not in use. Evidently the trial court computed the damages for the detention of the car on the basis of its gross rental value, whereas the true rule as declared in the opinion is the ‘net usable value less the expense of keeping up the property.’ A significant feature of the Mutch case lies in the fact that no third party claim was made to the sheriff under section 689, Code of Civil Procedure. For more than eight months after the levy of the attachment such failure to file a third party claim exempted the sheriff from liability for damages for the detention of the car until the third party claim was made. By reason of the unusual factors of this case the court felt constrained to apply the doctrine of section 3359 of the Civil Code which requires that ‘damages must, in all cases, be reasonable, and where an obligation of any kind appears to create a right to unconscionable and grossly oppressive damages, contrary to substantial justice, no more than reasonable damages can be recovered.’ However, section 3359 was not invoked merely because of the amount of damages awarded Mrs. Mutch but rather because the correct rule for computing her damage as contemplated by section 667 of the Code of Civil Procedure and as enunciated in Tucker v. Hagerty, supra, was ignored. Where a special statute makes provision for ascertaining the extent of damage sustained by a litigant a general statute embodying a principle of equity has no immediate application.

The first case to cite the Mutch decision with favor was Bonestell v. Western Automotive Finance Corporation, 1924, 69 Cal.App. 719, 232 P. 734. It was an action in claim and delivery for a touring automobile and damages for detention. The car had been the property of one Chrisman who applied to defendant for a loan in the sum of $750. Chrisman conveyed title of his car to defendant which thereupon executed a conditional agreement for the purchase of the car in the amount of his loan. All of the conveyances executed by Chrisman and the defendant were devices for the purpose of executing a loan. The court held under section 2924 of the Civil Code that the documents executed were in effect a mortgage on the automobile. Two installments under the contract having defaulted on March 3 and April 3, defendant took possession of the car under the conditional agreement. Thereupon Chrisman assigned his interest in the automobile to Bonestell. In citing Mutch v. Long Beach Imp. Co. as to the usable rental value of the automobile the court held that the detention of plaintiff's car was for 48 1/2 days and the only reliable proof of the usable rental value would be $10 or $12 a day gross, including a 30 per cent profit. While the appellate court declined to make a finding as to the usable rental value of the Bonestell car it reversed the case for a retrial upon the question of damages for detention with the suggestion that such value according to the evidence did not exceed $3 per day.

In Booth v. People's Finance & Thrift Co. of Modesto, 1932, 124 Cal.App. 131, 138, 12 P.2d 50, 52, the court held that the facts did not justify the application of the general rule. The jury found the value of plaintiff's automobile to be $650. Her compensatory damages for its detention were assessed at $1350 and exemplary damages in the sum of $1500. The proof showed that plaintiff's automobile was not used during its detention, and the only evidence of the net rental value was the testimony of a witness that its fair usable rental value would run from $2 to $2.25 per day. This was the only testimony to support the verdict for $1350 for the usable value of the car during nine months. ‘It thus appears,’ said the court, ‘that there is absolutely nothing in the record to support the verdict returned by the jury as damages for the detention of the automobile. Had the testimony introduced by the plaintiff, as to the usable value of the car, been accepted by the jury, the damages would have been fixed at the sum of $4,050. On the other hand, if the usable value, as testified to by the only witness [who had knowledge of the subject matter] * * * been accepted as a basis for an allowance, the verdict would have been in the sum of $607.25.’ Since there was no other reliable proof of such usable rental value the court held that the damages for the detention of the automobile should be fixed according to that evidence, citing the Bonestell case, supra. It is thus seen notwithstanding the application of Civil Code, section 3359, that the court assessed the damages for the detention of the car according to reliable evidence as to the usable rental value of the car.

The next decision to follow the Mutch case is Shockley v. Elmore, 1935, 9 Cal.App.2d 419, 423, 50 P.2d 91. The judgment there was reversed also for the reason that the amount fixed as damages for detention of a service station equipment worth $513 was ‘without evidentiary support.’ In that event the doctrine of the Mutch case limiting recovery to the net usable rental value of the chattel was applicable.

Thus it is seen that there has been no decision denouncing the rule that in a replevin action the aggrieved party is entitled to recover the usable rental value of his property while detained by the wrongdoer.

We come next to a consideration of the proof of the reasonable rental value of tractor 7. Not only does the answer admit that value to be $825 per month but at the trial the same was stipulated as evidenced by the following colloquy:

‘Mr. Evans: Counsel, perhaps I can obviate the next question if you will stipulate that in his answer Mr. Kirst has admitted that the reasonable value of the use of that equipment is $825 a month?

‘Mr. Doherty: Yes, subject to the O.P. A. deductions, of course; I think you stated that was $240 a month, or thereabouts?

‘Mr. Evans: May I read into the record the portion of the answer of defendant dealing with that?

‘Mr. Doherty: I will agree to what we say in the answer, but you said to the jury there was $240 a month allowance because he was credited with repairs.

‘Mr. Evans: No, we had contended it was $850 a month and had alleged reasonable value would be $825 a month, and we would accept that.

‘The Court: That is correct; the answer does state at the botton of page 1, reasonable value of said D 7 caterpillar tractor $825 per month.

‘Mr. Evans: Will you so stipulate?

‘The Court: That is part of the pleadings.

‘Mr. Doherty: Yes, his Honor has read it.

‘Mr. Evans: That is all, Mr. Krist.’

Respondent contends (1) that the answer's admission ‘is not an admission with respect to the reasonable value of the use of the tractor,’ and (2) that the correct measure of damages ‘is the value of the use less repairs made and expenses incurred in connection with the property.’ His first contention is answered by his pleading and by his counsel's acquiescence and statement during the quoted colloquy. From them no conclusion is reasonable other than that respondent conceded that ‘the reasonable rental value was $825 per month.’

During the course of the trial respondent made an offer of proof that the expense of overhauling the tractor at the time of his purchase from Grove and prior to his knowledge of appellants' claim was $2,169.82. This evidence was improperly excluded. Mutch v. Long Beach Imp. Co., supra. The rule of usable rental value would necessarily exclude the cost of the upkeep of the tractor to make it usable. But despite such rule respondent should pay the established reasonable or usable rental value of the tractor from June 10, 1946, to the date of judgment, substantially 11 months, aggregating $9,075, less the expense of its upkeep. Appellants are entitled to such damages as well as to the possession of the tractor, found to be worth $6,000, notwithstanding respondent's ignorance of the reservation of title by them. First Nat. Bank v. Thompson, 60 Cal.App.2d 79, 82, 140 P.2d 75; Merrill Lodge v. Ellsworth, 78 Cal. 166, 168, 20 P. 399, 2 L.R.A. 841.

Despite such state of the proof and the applicable law the trial court adopted respondent's special defenses, to wit: (1) That both Exhibits A and B together, and each of them, constitute a contract of conditional sale; (2) that they are void in that they were in violation of the ‘Emergency Price Control Act of 1942, as amended [50 U.S.C.A.Appendix, § 901 et seq.], and the Rules and Regulations issued pursuant thereto.’

Conceding, arguendo, it to be a fact that both writings constitute one agreement for the purchase of tractor 7 such fact could not avail respondent. Apparently his contention was made for the purpose (a) of defeating appellants' claim that the meaning and purpose of Exhibit B was to make a lease out of the transaction instead of a contract of sale, and (b) of then maintaining (1) that as vendee in possession and not in default Grove could with impunity ‘sell his interest’ to respondent, and (2) that the latter could by parol establish that appellants' purpose was to evade the federal statutes by making the agreement into a lease. Respondent cannot thus dispose of Exhibit B in the absence of appropriate pleading and proof. All of the conversations preceding the execution of Exhibit A were merged in that document and all conversations and writings with respect to the sale or lease of tractor 7 prior to the execution of Exhibit B were merged in that instrument. Therefore no testimony that would vary the terms of Exhibit B was lawful, and no evidence of the terms of the agreement other than its own contents was admissible in the absence of a ‘mistake or imperfection alleged in the pleading.’ Code Civ.Proc. sec. 1856; Estate of Gaines, 15 Cal.2d 255, 264, 100 P.2d 1055; Mulrooney v. Pietro, 79 Cal.App.2d 311, 314, 180 P.2d 62. Where the plain and unambiguous language of a contract permits its complete fulfillment and promotes its object, that construction is to be preferred over one derived by the elimination of or addition to its terms. Winship v. Wilkes, 121 Cal.App. 44, 50, 8 P.2d 502. It is not a just or proper application of the judicial function either to make a new contract for litigants or to rewrite the clear terms to which they have freely pledged their faith. Nourse v. Kovacevich, 42 Cal.App.2d 769, 772, 109 P.2d 999. It follows that all the hearsay testimony concerning respondent's purchase of another tractor from Grove and the asserted payment by him to appellants of the balance due on tractor 7 out of the money received from respondent was erroneously admitted.

This leads to respondent's second contention whereby he undertook to establish that appellants, having placed Grove in possession of the tractor and held him out as the owner of the machine, are precluded from now disputing respondent's title which they permitted Grove to transfer to him by allowing Grove to appear to be in complete possession, citing Martin v. Hollins, 118 Cal.App. 561, 5 P.2d 899, 900. But the successful maintenance of such contention involves more than the mere possession of the chattel. 10 Cal.Jur., p. 641. In the Martin case the plaintiff as original vendor had sold four generator sets on a conditional sale agreement to Hollins and Arrousez and thereafter consented to their sale of two of such sets. About six months later, without the knowledge of plaintiff, Hollins and Arrousez sold to appellant Waldorf Productions, Incorporated, the set involved in the action for $7,000. The original vendees having become insolvent defaulted in making the final payment of $500 to plaintiff, who sued to replevin the set which was in the possession of Waldorf Productions. While the court found against the ‘subsequent purchaser on the defense of authorization of said sale by plaintiff and also on the defense of estoppel,’ yet it was determined that since Waldorf Productions, Incorporated, believed that Hollins and Arrousez were the actual owners of the set they had sold to it, and since also the corporation had no knowledge of the fact that plaintiff was the owner, the subsequent purchaser was entitled to possession in event it made the final payment of $500. Such equitable disposition of the controversy was approved by the appellate court. The effect of that holding is to forestall a vendor from depriving an innocent purchaser of a chattel bought from the original vendee, if payment of the balance due the original vendor will effect justice to the latter and at the same time prevent hardship upon the subsequent vendee. Of course where the amount due the vendor is the equivalent of the value of the chattel in dispute the innocent purchaser is without a remedy if, as in the instant case, the facts do not warrant an estoppel.

The case of United States Machinery Co. v. International Metals Development, Inc., 74 Cal.App.2d 5, 168 P.2d 37, cited by respondent, is distinguished in that the defendant vendee under a conditional sale agreement established that it was entitled to damages for breach of warranty. Such sum when added to payment already made constituted substantially the balance due on the contract of purchase, thereby making applicable the equitable remedy announced in the Martin case. See Civ.Code, sec. 1789.

Since appellants did no act calculated to lead a reasonable person to believe that Grove was title owner of the tractor the thesis of respondent has no support in law. Grove was in the position of a mere possessor and could convey no title, however innocent his vendee. Oakland Bank of Savings v. California Pressed Brick Co., 183 Cal. 295, 297, 191 P. 524; Pacific Finance Corporation v. Hendley, 103 Cal.App. 335, 338, 284 P. 736, 285 P. 1048.

Respondent claims that appellants should be denied recovery on the ground that they based their right to possession of tractor 7 upon Exhibits A and B which he contends are violative of the Emergency Price Control Act. Such claim is without lawful basis. While it is true respondent proved (1) that appellants sold the tractor to Grove for $8,500; (2) that the maximum price to be charged for such used tractor not rebuilt and guaranteed is 55 per cent of its ‘base price’ (Maximum Price Regulations, No. 136 of the United States Office of Price Administration, sections 12[e][g], 4) which is the price f. o. b. the manufacturer's plant, and (3) that the base price of tractor 7 was $10,171.21, exclusive of sales tax, yet such proof was wholly immaterial and incompetent by reason of the fact that appellants did not rely upon their contracts with Grove to establish their right to possession. Respondent acquired no rights by virtue of appellants' violation of the federal statute or of the regulations pursuant thereto, if there were such violations.

In view of the conclusions above announced discussion of appellants' other points would be supererogatory.

It is therefore ordered that the judgment and the order denying plaintiff's motion for judgment notwithstanding the verdict be and each is reversed with instructions that judgment be entered in favor of plaintiffs as follows:

(1) That plaintiffs have and recover of and from defendant possession of the tractor bearing serial number 1H 7401 or, in the event possession cannot be restored, the value thereof in the sum of $6,000;

(2) That plaintiffs have and recover of and from defendant as damages for detention of said tractor the sum of $9,075 less such expense of maintenance and repairs of the tractor as may be hereafter established.

Provided, that in the event appellants shall within 10 days from date of this opinion file with the clerk of this court a waiver of their damages to the extent of $2,169.82, then the sum of $6,905.18 shall be substituted in lieu of $9,075 in paragraph (2) above, and as thus modified the judgment authorized shall be affirmed. Otherwise it will be reversed for the purpose of establishing the amount of respondent's said expense of repairs.

I cannot give my approval to a judgment that creates and sanctions an iniquity when justice may be rendered by the simple device of conforming to established law.

The judgment for damages which the majority of this court directs the trial court to enter is so grossly unfair and excessive and so disproportionate to the damage suffered as to be contrary to substantial justice. I can find no justification for it. The majority opinion ignores the command of section 3359 of the Civil Code that ‘Damages must, in all cases, be reasonable.’ The tractor is found to be valued at $6,000 and the judgment directs that plaintiffs recover possession of the machine or the sum of $6,000 if possession cannot be restored, and in addition thereto the sum of $9,075 as damages for its detention for 11 months, less the expenses of maintenance and repairs. Omitting the latter item, if the tractor cannot be delivered plaintiffs will receive two and one half times its value. If defendant had not used it for a single day and had completely destroyed it immediately on receiving possession of it, plaintiffs could recover no greater sum than the value of the machine. If it should be returned they will have their property plus one and one half times its value.

In addition to the foregoing quotation section 3359 of the Civil Code provides: ‘* * * where an obligation of any kind appears to create a right to unconscionable and grossly oppressive damages, contrary to substantial justice, no more than reasonable damages can be recovered.’ This is a case in which that section should be applied. In Mutch v. Long Beach Imp. Co., 47 Cal.App. 267, 190 P. 638, the court reversed a judgment that ordered the return of an automobile and the payment of three times its value as damages for its detention. What the court there said is applicable to the order made in this action by the majority: ‘It must be apparent at once that there is something wrong in a scale of damages that allows three [2 1/2] times as much for the detention of an article from the possession of the owner for a period of two years [11 months] as could have been recovered if the trespasser had completely smashed it up and destroyed it in the first instance.’ In Bonestell v. Western etc. Co., 69 Cal.App. 719, 727, 232 P. 734, 737, the opinion refers to section 3359, cites the Mutch case with aproval, and says ‘unless the damages allowed are shown to be such as approach actual, usable, or reasonable value of the article to the owner they have no support in this section.’ (Emphasis added.) In that case there was evidence upon which the judgment for damages could have been sustained, but because the amount allowed was excessive that part of the judgment was reversed and the cause remanded for trial on that issue alone. In Booth v. Peoples Finance & Thrift Co., 124 Cal.App. 131, 12 P.2d 50, the jury found the value of the automobile to be $650 and allowed the plaintiff $1350 damages for its detention. The court applied section 3359 and ordered the judgment for damages reduced to $607.25. ‘The amount of the recovery for the detention of property must bear reasonable proportion to the value of the same, otherwise the judgment cannot be sustained.’ Romberg v. Hughes, 18 Neb. 579, 26 N.W. 351, 353. In the Romberg case damages in the sum of $584 for detention of property valued at $285 was held to be excessive.

In Armstrong & Latta v. Philadelphia, 249 Pa. 39, 94 A. 455, 458, Ann.Cas.1917B, 1082, the court reversed a judgment for $13,774 allowed as damages for detention for a period of 11 months of machinery valued at $6,500. The court stated that the general rule in an action for replevin, where the plaintiff secures possession of his property, is that he may recover damages for its detention, and that where property is capable of such physical use and enjoyment as cannot be compensated by allowance of interest, it is necessary to consider the value of such use. The court referred to the fact that by reason of the judgment the plaintiffs would recover a sufficient amount of damages in one year to purchase two or more entire new plants and said: ‘This amount of damage shows on its face that there is something radically wrong in the method of calculation, if compensation is to be taken as the proper measure. * * * The amount of damages for detention should also bear some reasonable proportion to the value of the goods.’ The judgment ordered in the case at bar will return the tractor to plaintiffs and provide sufficient funds to enable them to purchase a new machine and have a large surplus to apply on another.

The majority of this court have disregarded the rule of reasonableness found in the foregoing decisions and have attempted to support their decision by the citation of cases in which the usable value was contrasted with the amount of interest that had accrued on the value of the chattel, and where it was found that that amount would not fully compensate the owner for the detention of his property. In those cases the rental value was held to be the correct measure of damages, but no question was raised as to whether the amount of damages awarded was reasonable or excessive. For that reason they do not support the decision. Section 667 of the Code of Civil Procedure merely provides that the plaintiff is entitled to damages for the detention of his property and does not lay down a rule for the determination of the amount he should be permitted to recover.

The majority have labored at great length, but vainly and ineffectively, to distinguish the California cases above cited and have brushed them aside as inapplicable to the instant case. Their endeavor in this regard is mainly directed to an elaborate statement of the facts in each of the cases differentiating them from the facts in this case. Of course the facts in the cases that I have cited are dissimilar from those in the instant case but that does not impair their effect as authorities in this or any other case in which the amount of damages awarded is, as here, grossly excessive and disproportionate to the value of the property. The decisions cited by the majority in which the reasonableness of the damages is not discussed cannot be relied on to sustain a judgment in a case where that is the question at issue.

The majority rest their decision on a rule found in cases in which usable or rental value is compared with interest at the lawful rate and where the question of reasonableness is not raised or discussed—a rule that they would apply strictly and undeviatingly, like ‘the law of the Medes and Persians, which altereth not,’ * * * giving no consideration to section 3359. They also rely on section 3333 of the Civil Code, apparently oblivious of the rule that all provisions of the code must be read and construed together and that effect must be given to every section. They ignore the fact that the provision in section 3359 that damages must be reasonable is an essential condition that must be acknowledged and applied in all cases. Insofar as the majority are concerned section 3359 is nonexistent.


1.  Exhibit A reads as follows:‘11–7–45‘I Hereby agree to Buy one cat & unit Serial 7401—to be bought as rent at Terms of $1,000 down and 1,000 each month for 7 months & one payment of $500, one cat. unit & ‘A’ frame Serial No. 1–H–949.‘1–H–949and one R-U-Carry all for payment of $1,500 down an 13 payments of $1,000 and one payment of $500. R-U—7747-after Said payments have been made in full Said buyer H-T-& Guerin Bro' are to furnish me with Bill of Sale to all this Equipment. Interest of deferred payments at 8%.‘Guerin Bros By H. T. Guerin‘Vergil Grove’

FN2 ‘For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided (section 3333 of Civil Code.) by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.’ However, section 667, Code Civil Procedure, is directly applicable in cases of replevin..  FN2 ‘For the breach of an obligation not arising from contract, the measure of damages, except where otherwise expressly provided (section 3333 of Civil Code.) by this code, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.’ However, section 667, Code Civil Procedure, is directly applicable in cases of replevin.

MOORE, Presiding Justice.

McCOMB, J., concurs.