Carrey v. Boyes Hot Springs Resort, Inc.

• Decision Date: 17 October 1966
• Citation: 245 Cal.App.2d 618,54 Cal.Rptr. 199
• Court: California Court of Appeals Court of Appeals
• Parties: Frank A. CARREY and Hazel M. Carrey, Individually and doing business as Boyes Springs Mineral Water Company, Plaintiffs, Cross-Defendants and Respondents, v. BOYES HOT SPRINGS RESORT, INC., a corporation and Luis F. Vela, Defendants, Cross-Complainants and Appellants. Civ. 22875. Division 3, California

Page 199

54 Cal.Rptr. 199

245 Cal.App.2d 618

Frank A. CARREY and Hazel M. Carrey, Individually and doing business as Boyes Springs Mineral Water Company, Plaintiffs, Cross-Defendants and Respondents, v. BOYES HOT SPRINGS RESORT, INC., a corporation and Luis F. Vela, Defendants, Cross-Complainants and Appellants.

Civ. 22875.

District Court of Appeal, First District,

Division 3, California.

Oct. 17, 1966.

Rehearing Denied Nov. 16, 1966.

Hearing Denied Dec. 14, 1966.

Jerome R. Lewis, Sacramento, for appellants.

Lounibos & Lounibos, Petaluma, for respondents.

SALSMAN, Justice.

Appellants, who were defendants in the trial court, appeal from a judgment in favor of respondents in the total sum of $6,243.47. Respondents claimed a wrongful eviction from premises let to them by appellants, and a conversion of their personal property. Appellants contend first that the trial court erred in failing to segregate the items of personal property found to have been converted and to fix the fair market value of each item, and second that the award of damages is not supported by substantial evidence. Finally appellants urge that it was error on the part of the trial court to refuse to find separately on the issue of damages to be awarded for loss of profits and for loss of good will, after appellants had requested specific and separate findings on these issues. We have concluded that, excepting appellants' first contention, the other grounds of appeal have merit and compel reversal of the judgment.

The record discloses that for some years before their eviction, respondents had been tenants of appellants on a month-to-month tenancy. Respondents were given the right to bottle and sell mineral water from the premises, and for that purpose to use certain machinery and equipment belonging to appellants. Sales were made to the general public. Respondents had some 200 customers. They also had a distributorship in Martinez and one in San Francisco. In the conduct of their business, they purchased and used large numbers of bottles, bottle cases, ollas and five-gallon jugs, as well as bottling equipment and supplies.

On or about March 2, 1963 respondents were summarily evicted by appellants, and at the same time appellants took possession of the equipment, stock and supplies on the demised premises. It is not disputed that the eviction was sudden and wrongful. At the time of eviction there were many bottles, bottle cases, ollas, jugs, coolers and supplies on the premises where the business was conducted, but there was also much equipment 'out in the trade', that is, in possession of respondents' customers. After eviction, appellants refused to permit respondents to return to the premises. Appellants took possession of all of respondents' equipment and supplies on the premises at the time of eviction, serviced respondents' customers, and collected some of respondents' accounts receivable.

After trial, the court found that: '* * * the value of the items of personal property owned by the plaintiffs and converted by the defendants was in the amount of $3743.47.' Appellants requested a specific finding of the value of each item of property converted, and now contend that it was error on the part of the trial court to refuse that request. This contention lacks merit. Of course, findings of fact must be definite and certain, so that a defeated party may show how or in what manner the findings made are unsupported by the evidence. (Andrews v. Cunningham, 105 Cal.App.2d 525, 528, 529, 233 P.2d 563.) But it is equally well settled that a trial court is not required to assess damages separately for each item of loss. The court is required to find only the ultimate facts, not the evidentiary ones. (Vogelsang v. Wolpert, 227 Cal.App.2d 102, 125, 38 Cal.Rptr. 440, and cases cited.) Here there was evidence that appellants converted various items of respondents' personal property, and there was also evidence of the value of these items. The trial court did not break down or itemize the specific items of personal property converted and fix a value on each items, but did find the fact of conversion and fixed damages at $3,743.47. The trial court did not err when it refused to fix a value on each and every item of the converted property.

As we have seen, the trial court fixed the total value of the property converted at $3,743.47. Appellants contend that the evidence does not support this award, and we agree.

Respondents' evidence showed the total value of their personal property to be $4,945.82--$1,202.35 more than the court allowed in its judgment. Included in respondents' itemized list of property, however, were 250 ollas, 890 five-gallon jugs, 200 cases for five-gallon jugs and 20 metal water coolers. The total value of these items amounted to $3,271.76, which, deducted from respondents' total valuation of $4,945.82, leaves the value of all other property at $1,674.06. Since the court allowed $3,743.47 as damages, it follows that some portion of the damages allowed is represented by the value of the ollas, five-gallon jugs, jug cases and water coolers mentioned. But the difficulty here, and the fact that compels reversal of the judgment, is that an undisclosed number of the ollas, five-gallon jugs, jug cases and water coolers were 'out in the trade', that is, in possession of respondents' customers at the time of respondents' eviction. We see no substantial evidence in the record that any of respondents' property that was 'out in the trade' at the time of appellants' wrongful acts was in fact converted by appellants. Conversion, of course, is simply the wrongful exercise of dominion over the personal property of another, in denial of the owner's rights. (Gruber v. Pacific States Sav. & Loan Co., 13 Cal.2d 144, 148, 88 P.2d 137; Zaslow v. Kroenert, 29 Cal.2d 541, 549, 176 P.2d 1.) To establish a conversion the owner must show an intention on the part of the wrongdoer to convert the owner's property, or to exercise some act of ownership over it, or to prevent the owner's taking possession of his property. (Zaslow v....