Wade v. Markwell & Co.

• Decision Date: 10 June 1953
• Citation: 118 Cal.App.2d 410,258 P.2d 497
• Court: California Court of Appeals Court of Appeals
• Parties: , 37 A.L.R.2d 1363 WADE v. MARKWELL & CO. Civ. 19341.

Page 497

258 P.2d 497

118 Cal.App.2d 410, 37 A.L.R.2d 1363

WADE v. MARKWELL & CO.

Civ. 19341.

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

June 10, 1953.

Grainger, Carver & Grainger and Harry M. Irwin, Los Angeles, for appellant.

A. Brian Weinberg, Santa Monica, for respondent.

Levy, Bernard & Jaffe, Saul J. Bernard, and Reuben Freedman, Los Angeles, for California Collateral Loan Broker Ass'n, amici curiae.

FOX, Justice.

This is an appeal by defendant company from a judgment for defendant's conversion of plaintiff's coat.

At the outset of the trial, defendant objected to the introduction of any evidence on the ground that plaintiff's first amended complaint failed to state facts sufficient to constitute a cause of action for the recovery of her coat or its value. After briefly taking testimony, plaintiff served on defendant her second amended complaint, and it was on the allegations of this pleading that the case was subsequently tried. There can be no quarrel with this procedure. A court may exercise great liberality to permit the amendment of a pleading at any and all stages of the proceedings in order to present adequately the necessary issues. Redondo Improvement Co. v. Redondo Beach, 3 Cal.App.2d 299, 302, 39 P.2d 438; 21 Cal.Jur., p. 183.

In her second amended complaint, plaintiff made the following material allegations: That on March 23, 1949, she was the owner of a full length, mink fur coat which, at that time, had a value of $4,800; that on said date, defendant orally represented to her that 'if the plaintiff would permit the defendant to retain possession' of her coat, defendant would give her $300 as a loan thereon and send her written notification of the expiration date of the loan and that she need not be concerned about reclaiming the coat until such time; that plaintiff, relying upon these representations by defendant, through its agents, which representations defendant knew to be false, placed her coat in defendant's custody, whereupon defendant delivered to plaintiff the sum of $270, withholding the sum of $30 as prepaid interest on the loan in violation of section 17, page 2675 of the 1939 Statutes of California; that at the time of this transaction defendant gave plaintiff a written receipt, reproduced in part as follows:

'Los Angeles, Calif.,

3-23, 1949 . . . F 16926

I hereby pledge to Markwell & Co., the following described property, to wit:

1--Natural Eastern Mink Coat

Anglefetzer Cleveland Label

to secure the payment of a loan in the sum of

'Three Hundred . . . Dollars $300,00 (The receipt of which is hereby acknowledged) together with interest and charges as herein provided. It is agreed that said loan shall bear interest and/or other charges from date until paid at the maximum rate permitted by the statutes of California. * * *

'It is further agreed that the last day of redemption of this pledge shall be thirty (30) days after the date hereof. * * * In the event of default I expressly waive demand of performance and the giving of notice of time and place of sale and agree that said property may be sold at public or private sale and that pledgee may be a purchaser if the property is sold at such sale. * * * I agree that the fair market value of the above described pledged property is not more than 125 percent of the principal amount of the said loan * * *' that notwithstanding any valuation appearing in the written receipt, plaintiff and defendant agreed that the fair market value of the coat, as estimated by defendant's agent, was between $4,500 and $5,000.

The complaint further recites that about November 23, 1949, defendant sent a written notification to plaintiff notifying the plaintiff of the expiration date of the loan and requesting plaintiff to repay the loan and reclaim the coat; that on the same day this notification was received, plaintiff telephoned defendant and orally represented to defendant's agents that she had received the aforesaid notification and would recover the coat before the weekend, in response to which defendant's agents represented that the coat would be available for plaintiff to reclaim within a week; that on or about November 25, 1949, plaintiff orally demanded of defendant the return of the mink coat, offering to defendant's agents 'the sum of $270 as repayment of the loan, plus any accrued interest or charges; that defendant's agents refused to accept such tender and refused to return the coat; that defendant orally represented to plaintiff that it had sold the coat to a third person, whose name defendant's agent refused to divulge, in violation of section 342 of the Penal Code; that defendant's act of disposing of the coat was unlawful and was to plaintiff's damage in the sum of $4,800.

The complaint prayed judgment 'for the recovery of possession of the coat or, in the event delivery could not be had, its value of $4,800.

Defendant's contention that the complaint does not state facts sufficient to constitute a cause of action is without merit. In support of this contention, defendant argues that there is no allegation that plaintiff has ever paid or tendered to defendant the sum for which her coat was pledged. It relies on the fact that the first amended complaint alleges an offer to pay the sum of $270 in repayment of the loan, which is the exact amount which the complaint alleges plaintiff received from defendant, and is insufficient because it does not include any of the accrued interest or charges from March 23, 1949. This insufficiency was cured in the second amended complaint, on which the issues were tried, by plaintiff's allegation that to redeem her coat, she offered defendant's agents the sum of $270 in repayment of the loan, plus any accrued interest or charges.

It is further argued that since, in the pledge agreement, which is recited in the complaint, plaintiff acknowledged the receipt of $300, plaintiff could not comply with her obligation to defendant without alleging a tender of $300 together with interest and charges. However, where the consideration recited in a contract is different from the consideration actually received, a party is not bound by the written recital, but may allege and prove the true consideration passing between the parties. Code Civ.Proc. sec. 1962, subd. 2; Johnston v. Courtial, 216 Cal. 506, 510, 14 P.2d 771; 6 Cal.Jur., p. 197 et seq. This is precisely what plaintiff alleged in her complaint, along with her offer of payment of the amount due under the allegations. Having thus alleged a demand accompanied by sufficient tender, defendant's refusal to restore her coat, and certain other facts tending to show defendant's fraudulent dominion over the coat inconsistent with her right to immediate possession, the complaint contains all the requisites of a cause of action for conversion. Baird v. Olsheski, 102 Cal.App. 452, 283 P. 321; Gustafson v. Byers, 105 Cal.App. 584, 288 P. 111. While it may be conceded that the complaint was somewhat ambiguous and uncertain in its allegations of an unlawful sale of the coat by defendant and greater particularity with respect to the transaction would have been desirable, the rule is that uncertainties in a complaint are waived by failure to demur on that ground. Redondo Improvement Co. v. Redondo Beach, supra, 3 Cal.App.2d at page 49, 303, 39 P.2d 438. An objection to the introduction of any evidence 'does not serve the function of a special demurrer for uncertainty, and as no such demurrer was filed, any uncertainties that we find to exist are to be resolved in favor of the complaint's sufficiency. [Citation.] None but a defect at an essential point will justify an order sustaining an objection to the receipt of any evidence.' Bauer v. Neuzil, 66 Cal.App.2d Supp. 1020, 1022, 152 P.2d 47, 49. See Gallagher v. California Pac. T. & T. Co., 13 Cal.App.2d 482, 486, 57 P.2d 195.

Defendant makes the further point that the pledge agreement, as alleged in the complaint, fixes April 22, 1949, as 'the last day of redemption of this pledge' and the pledgee had the statutory right, Stats.1939, Ch. 951, p. 2667, to sell the pledge upon the expiration of six months after the last day of redemption, viz.: after October 22, 1949. Therefore, it is argued that the alleged oral representations made by appellant's agents on November 23, 1949, that the coat 'would be available for plaintiff to reclaim within a week' is not valid or binding on defendant because (a) neither the written pledge agreement nor the alleged written notification to plaintiff of the expiration date of her loan can be orally altered nor can the expiration date specified therein be extended orally, and (b) there was no consideration for the alleged extension of the time for plaintiff to reclaim her coat. These arguments are without foundation, since they misconceive the effect of plaintiff's allegations with respect to her conversation with defendant regarding her redemption of the coat. Her pleading may well be construed as raising a promissory estoppel against defendant, which is well recognized either as a 'species of consideration', Porter v. Commissioner of Internal Revenue, 2 Cir., 60 F.2d 673, 675, or as a substitute for consideration. 1 Williston on Contracts (Rev.Ed.) sec. 139; 3 Pomeroy's Equity Jurisprudence, 5th Ed., sec. 808(b).

According to the complaint, plaintiff received a notification from defendant requesting her to repay her loan and reclaim her property. Thereupon plaintiff orally informed defendant that she was ready to do so, and was advised by defendant's agents that she had a week within which to reclaim the coat. Relying on this representation, plaintiff alleges that she appeared two days later with proper tender, only to be told that the coat had been sold. Assuming the truth of these facts, as we must when considering the sufficiency of a pleading after an objection to the introduction of evidence, Miller v. McLaglen, 82 Cal.App.2d 219, 186 P.2d...