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FRAN WELL HEATER CO v. C. Ray Robinson, Appellant.

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

FRAN-WELL HEATER CO., a Corporation, Plaintiff and Respondent, v. C. Ray ROBINSON, Frank McAteer; Frank McAteer, General Partner of Spur Oil Company, a Limited Partnership; Spur Oil Company, a Limited Partnership, Frank McAteer, General Partner, Defendants. C. Ray Robinson, Appellant.

Civ. 23784.

Decided: March 28, 1960

C. Ray Robinson, Merced, William B. Boone, Fresno, for appellant. Robert E. Snyder, Taft, Ernest V. Shockley, Los Angeles, for respondent.

Plaintiff brought this action to recover possession of certain personal property, or the value thereof, together with damages for its wrongful detention. Defendant Robinson has appealed from an adverse judgment.

Robinson owned an oil lease, known as the Ripley oil lease, on property in Kern County upon which there were three wells. In 1954 he leased two complete heating units, consisting of both surface and subsurface equipment, from plaintiff. This equipment was installed in wells 1 and 2 on said lease. The rental initially was at the rate of $250 per month. Later, the surface equipment was removed by plaintiff. The rent was then lowered to $100 per month per well for the remaining subsurface units. This action involves only the subsurface equipment.

In the fall of 1955, defendant Spur Oil Company1 purchased the Ripley oil lease from Robinson, who executed a general bill of sale covering the lease and certain equipment. No inventory of equipment, however, was provided. These heaters, which plaintiff had leased to Robinson, were in the holes of wells 1 and 2 of the Ripley lease when it was sold and transferred to Spur Oil Company by Robinson. Spur Oil Company continued to use the heaters in these wells.

In September, 1956, plaintiff brought an action denominated ‘claim and delivery'2 against Robinson, McAteer and Spur Oil Company to recover possession of these heaters, or the value thereof in case delivery could not be had, together with damages for the wrongful detention thereof. The court rendered judgment in plaintiff's favor and against Robinson for the possession of said equipment and upon the failure to deliver same within ten days, then for its value in the sum of $1,679.26, and damages for detention from October 1, 1955, to date of trial, April 24, 1958, at the rate of $200 per month, a total of $5,160.3 It is from this judgment that Robinson has appealed. The court found in favor of defendants McAteer and Spur Oil Company.

At the commencement of the trial the following transpired:

‘Mr. Snyder [Attorney for Plaintiff]: The plaintiff and both the defendants are prepared to stipulate that the plaintiff is the owner of the equipment set forth in the plaintiff's complaint, and entitled to his [sic] possession of the equipment or the reasonable value which we set at $1,679.26.

‘Mr. Lee [Attorney for McAteer and Spur Oil Co.]: So stipulated.

‘Mr. Ludlow [Attorney for Robinson]: So stipulated.’

Mr. Snyder then stated: ‘The only issue the plaintiff will have to put on evidence in regard to is the reasonable rental value of this equipment.’

The case was tried strictly upon this stipulated procedural posture of the case. Plaintiff's evidence was limited to the rental value of the equipment. The defense evidence solely related to the transaction between Robinson and Spur Oil Company and McAteer. No question was raised as to the propriety of plaintiff's cause of action. There is no showing in the record that any point was made during the trial that plaintiff was not entitled to recover against Robinson on the theory that he did not have possession of the heaters when this action was commenced. Nor was any suggestion made that plaintiff was called upon to prove that a demand had been made for the return of the heaters, or that it should establish facts which would show that a demand would have been futile. This was consonant with the stipulation between plaintiff and defendant Robinson that plaintiff was entitled to possession of the equipment, for such a stipulation implies the existence of every factor essential to that legal conclusion. Notwithstanding this state of the record, Robinson attempts to argue on appeal that plaintiff cannot maintain this action against him (1) because he was not in possession of the property at the time the suit was filed, and (2) because plaintiff did not prove a demand upon him for the return of the heaters. In view of the stipulation, the theory upon which the case was tried, and the failure to raise either of these points during the trial, Robinson is not in a position to raise them on appeal. The applicable principle is stated in Grimes v. Nicholson, 71 Cal.App.2d 538, 162 P.2d 934. At page 543 of 71 Cal.App.2d, at page 936 of 162 P.2d, this court stated: ‘If a case is tried, submitted, and decided on a certain theory, a party will not be permitted to raise for the first time on appeal an objection that could have been obviated if it had been made in the court below.’ Furthermore, ‘when a case is tried upon the theory that certain facts exist, even though they are put in issue by the pleadings, their existence will be assumed on appeal.’ Goss v. Fanoe, 114 Cal.App.2d 819, 826, 251 P.2d 337, 341; Handy V. Fitschen, 9 Cal.App.2d 637, 640, 50 P.2d 1059.

It is argued that the court erred in awarding plaintiff the full purchase price of the equipment on the theory that it was leased to Robinson under an agreement whereby he had an option to purchase it and apply ‘a certain percentage of the rental’ to the purchase price. The complete answer to this argument is that the record fails to disclose any specific option agreement between plaintiff and Robinson relative to the bottom hole heaters.4

Robinson argues that plaintiff was not entitled to recover any damages from him for the detention of the heaters from October 1, 1955, to date of trial because he did not have possession of said heaters during that period. In this connection the trial court found that Robinson wrongfully withheld said personal property from plaintiff from that date until the trial. Of course, such a finding, if adequately supported, would establish one of the essential elements for such an award. But, argues Robinson, there is no evidentiary support for such a finding. In taking this position, Robinson overlooks the significance of his own acts in turning over posession of these heaters to Spur Oil Company when he sold the lease to it in the fall of 1955 and delivered possession of the wells to it. He did not own the heaters and he did not have plaintiff's authority or consent to turn the possession of this equipment over to a third person. Up to the time of trial, Robinson had not regained possession of the heaters. These facts adequately support the above finding. This finding, together with Robinson's stipulation and the other facts and circumstances in evidence, amply justify the trial court's action in awarding damages against him for wrongfully withholding the heaters from plaintiff for the period in question. Obviously, Robinson could not relieve himself from damages for wrongfully withholding the heaters by the simple expedient of turning possession over to a third party.

Robinson mistakenly argues that the judgment in favor of defendants McAteer and Spur Oil Company is prejudicially erroneous as to him. Robinson is held liable for the damages caused by his acts. This liability is separate from and independent of any liability that the other defendants may have incurred. Even if the judgment as to the other defendants is erroneous it cannot affect the judgment against Robinson. Johnson v. Hulse, 83 Cal.App. 111, 118–119, 256P. 551; Click v. Southern Pac. Co., 113 Cal.App. 528, 529, 298 P. 839; Richman v. Green, 143 Cal.App.2d 470, 472, 299 P.2d 890.

Robinson argues that the court erroneously awarded damages based upon a flat rental of $200 per month. We find no merit in this argument. The evidence was undisputed that the initial agreed monthly rental was $200. That is some evidence of the reasonable rental value. There was also evidence that this figure was ‘a very fair price’. Based on this evidence the trial court found that this property was leased ‘for an agreed and reasonable price of $200.00 a month’, and concluded that plaintiff was entitled to damages for its detention ‘at the rate of $200.00 per month’. While the finding is not as detailed and explicit as it might have been, it is adequate to show that the court fixed the damages at $200 per month for the period in question. The evidence is clearly sufficient to support such finding and conclusion.

Relying on Guerin v. Kirst, 33 Cal.2d 402, at pages 414–415, 202 P.2d 10, at page 17, 7 A.L.R.2d 922, Robinson says that the proper measure of damages is the net usable value less the expense of keeping up the property and that an allowance for decline in rental value should have been made. But these principles are of no assistance to him on this record. There is neither pleading nor proof that Robinson incurred any expense by way of repairs or maintenance on said heaters. The only evidence on this question is by Mr. Sanchez on behalf of plaintiff, that ‘We also maintain our equipment * * * which is all included in our price.’ Nor was there any pleading or evidence of any decline in rental value of the heaters. Actually, the record indicates there is no basis for the application of this principle for the stipulation at the outset of the trial between plaintiff and Robinson stated, inter alia, ‘we set’ the ‘reasonable value’ of the heaters ‘at $1,679.26.’ This is the price plaintiff ‘had set on that equipment’ when it was initially leased to Robinson. From this it would appear there had been no decline in the rental value of the heaters.

Counsel for Robinson argue that the award of damages of $5,160 for detention of the heaters is excessive as a matter of law when compared to their purchase price of $1,679.26. The wrongful detention of the heaters was from October 1, 1955, to April 24, 1958,—a period of a little more than 2 1/2 years. In making this argument counsel have overlooked the fact that plaintiff maintains and services the equipment that it leases and that there is no evidence in the record to indicate the usual or average monthly or annual expense this involves. Of course this is a factor that plaintiff must take into account in fixing its rentals, and must be figured on an average basis over a substantial period and not upon any particular transaction. Of course this item is subject to fluctuation depending upon costs, and, as a practical matter, must from time to time be revised. Absent this expense factor, we cannot say, as a matter of law, that the damages awarded are excessive.

So far as the damages for wrongful detention are concerned, it should be borne in mind that the monthly award therefor is identical with the previously agreed monthly rental for the equipment. Hence, the damages in this respect do not appear to be excessive. Furthermore, the period for which damages were allowed was always within Robinson's control. If the amount awarded seems excessive he has only himself to blame.

Counsel for Robinson argue that the findings are erroneous and incomplete. From what we have previously said, it is apparent that there is ample evidence to justify and support the findings that are essential to the validity of the judgment. Nonessential findings may be disregarded. Counsel call particular attention to the absence of evidence relative to a demand for the return of the heaters. This asserted deficiency is adequately taken care of by the stipulation previously discussed.

The judgment is affirmed.


1.  The Spur Oil Company is a limited partnership in which Frank McAteer is a general partner. McAteer is also a defendant both individually and as a general partner in the Spur Oil Company.

2.  Plaintiff did not seek to have the heaters returned to it immediately under the provisions of Code of Civil Procedure, § 509 et seq.

3.  Due to an inadvertence the damages for detention were erroneously fixed at $5,160 instead of $6,160 which would have been the proper amount at $200 per month. Of course Robinson cannot complain of this error in his favor.

4.  The only testimony concerning this question relates to the possible purchase of both ‘the surface and subsurface [botbom hole] equipment.’

FOX, Presiding Justice.

ASHBURN and HERNDON, JJ., concur.

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