Sperisen v. Heynemann

• Decision Date: 19 March 1957
• Citation: 149 Cal.App.2d 228,308 P.2d 436
• Court: California Court of Appeals Court of Appeals
• Parties: Francis J. SPERISEN, Plaintiff and Respondent, v. John HEYNEMANN, Defendant and Appellant. Civ. 17098.

Page 436

308 P.2d 436

149 Cal.App.2d 228

Francis J. SPERISEN, Plaintiff and Respondent, v. John HEYNEMANN, Defendant and Appellant.

Civ. 17098.

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

March 19, 1957.

Rhein, Dienstag & Levin, Edward Levin, Jay Jackson, Jr., San Francisco, for appellant.

Peart, Baraty & Hassard, Robert D. Huber, San Francisco, for respondent.

PETERS, Presiding Justice.

This action was brought by the bailor of two matched jade bridal lamps against the bailee to recover the damage to one of the lamps that occurred during the bailment. The complaint is in two counts. One alleges that the bailee deviated from the terms of the bailment, and the other alleges that the bailee was negligent. The prayer is for $3,500, the alleged cost of repairing the damaged lamp. The trial court entered its judgment against defendant for the full $3,500. The findings are based entirely on the cause of action alleging deviation from the terms of the bailment. There was neither evidence nor a finding on the negligence cause of action. Defendant appeals.

The general facts are as follows: A Mr. Koo admittedly owned, and still owns, the two matched jade lamps, valued at $6,500. Defendant informed the plaintiff that he had a potential customer for the lamps in Dallas, Texas. Plaintiff told Koo of this possibility and he, being agreeable to a sale, delivered the lamps to the plaintiff. Plaintiff then, in turn, delivered the lamps to defendant on August 5, 1952. Before delivery, a microscopic examination of the lamps was made, and all agree that the lamps were then in perfect condition. The lamps were not sold and were delivered back to plaintiff on February 13, 1953. At that time even a visual examination disclosed that a part of one of the lamps, called a 'fence', had been broken. Plaintiff, as bailor, considered himself responsible to Koo, the owner. He thereupon brought this action against defendant. This he had a legal right to do. A bailor need not be the owner of the bailed property. He may maintain an action against third persons based on a possessory interest if that interest is good as against all but the true owner. See generally 6 Am.Jur. p. 232, § 77. Defendant does not challenge plaintiff's right to maintain the action.

The 'deviation' cause of action alleges that the lamps were delivered to defendant 'for the sole purpose and on the express oral agreement of defendant that the lamps were to be exhibited by him to a client of the defendant's in Dallas, Texas, as a possible purchaser.' In violation of this agreement, it is alleged, defendant took the lamps to Los Angeles for exhibition and sale at retail, and, while the lamps were in the possession of defendant, one of the lamps was damaged.

The findings are in general accord with this portion of the pleadings. The court found in accordance with the uncontradicted evidence that the lamps were valued at in excess of $6,500, and then found the terms of the bailment as pleaded by plaintiff. The court then found that 'defendant instead of exhibiting said lamps to his client in Dallas, Texas, took the said lamps to Los Angeles, California, for exhibition and to be sold at retail contrary to the agreement between plaintiff and defendant * * *.' The court then found that while in the possession and control of defendant 'one lamp was broken and damaged and that the reasonable cost of repairing said lamp is the sum of $3,500.00.'

There is no question raised as to the law applicable to these facts. Defendant does not challenge the authorities cited by plaintiff for the proposition that any deviation from the terms of the bailment renders the bailee absolutely liable for any damage suffered to the goods while in his possession. In support of this rule plaintiff cites Civil Code sections 1836 and 1930; Constantian v. Mercedes-Benz Co., 5 Cal.2d 631, 55 P.2d 841; Hollywood M. P. Equipment Co. v. Furer, 16 Cal.2d 184, 105 P.2d 299. These authorities generally support the rule for which they are cited, at least by way of dicta. The rule is well settled. Supported by many authorities it is stated as follows in 6 Am.Jur. p. 330, § 225: 'In conformity with this rule, the authorities, generally speaking, support the proposition that in every bailment, whether lucrative or not, the bailor is entitled, and the bailee is bound, to a carrying out of the purpose of the bailment within the terms expressly or impliedly agreed upon by the parties, and a bailee who departs from such terms is liable to the bailor for any loss or damage in respect of the thing bailed which occurs as a result thereof, irrespective of any want of due care on his part, in the absence, of course, of any ratification on the part of the bailor; or, as otherwise stated, if a bailee elects to deal with the property entrusted to him in a way not authorized by the bailor, he takes upon himself the risk of so doing, except where the risk is independent of his acts and inherent in the property itself.'

As already stated, defendant does not challenge this rule of law.

Defendant's first contention is that the finding that he deviated from the terms of the bailment is not supported. Although the evidence as to the terms of the bailment is in conflict, there is ample evidence to support the finding of the court on this issue. At the time the lamps were delivered to defendant on August 5, 1952, there were five people present--defendant, Mr. Koo, plaintiff, and his wife and son.

The son testified that plaintiff told defendant that 'These lamps should be shown to your client in Dallas, Texas,' and that 'These lamps are to be restricted to a private showing to your client in Dallas, Texas,' and defendant replied 'Yes, I understand this.' Plaintiff's wife testified that plaintiff told defendant 'that the lamps were to be shown to his customer in Dallas, Texas,' and defendant replied 'that is what he would do, and that alone.' This testimony alone supports the finding as to the terms of the bailment.

Mr. Koo was positive that he had stated that he did not want the lamps shown in public, and he was quite clear that plaintiff had told him that defendant wanted the lamps to show to a private purchaser in Texas. Plaintiff testified that, because of Mr. Koo's restrictions, the lamps were 'to be shown privately and they were not to be placed on display'; that they were to be shown only to a private collector 'and not to the trade.' He stated that by private collector he meant a private individual, and not firms like Gump's, V. C. Morris & Company, Nathan Benz or other retail dealers. He first testified that defendant was not to be limited as to the persons to whom the lamps could be displayed, but after thinking about the matter overnight he said that by 'exhibited privately' he meant exhibited to the Texas customer that defendant had mentioned.

Defendant's testimony was not clear. He admitted that the only prospective customer he discussed with plaintiff was the man in Texas, and he also admitted that he did not disclose to plaintiff that in fact he did not know personally the man in Texas but expected to make such a contact through a Los Angeles dealer. He first testified that plaintiff told him that he could display the lamps 'only for your client in Dallas, Texas,' but shortly thereafter testified that plaintiff said 'I should show the lamps only in privacy, not in public. I understand he means not go and peddle them around to the retail stores with the lamps and putting them on display for the open public.' A little later he testified: 'I couldn't recall correctly the conversation. Maybe I misunderstood him or maybe--I was only talking to Mr. Sperisen about one customer,' that is, about his Dallas buyer.

From this summary it is quite apparent that the finding that the express terms of the bailment were that the lamps were delivered to defendant for the sole purpose of displaying them to a prospective client in Dallas, Texas, is amply supported.

The next question is whether there was any deviation from the terms of this bailment, as found by the trial court. This, of course, depends upon what defendant did with the lamps.

Defendant neither took the lamps to Dallas, nor did he display them to any customer from there. He testified that when the lamps were delivered to him on August 5, 1952, he took them to his home where they remained for about 14 days; that then he took them to Los Angeles and placed them in the jade vault at Elizabeth McPherson's, where they remained for between 10 to 14 days; that he then brought them back to his home in San Francisco; that some time thereafter he put them...