Opinion
Rehearing Granted June 24, 1948.
Appeal from Superior Court, Los Angeles County; Charles S. Burnell, Judge.
Claim and delivery action by H. T. Guerin and others, partners doing business as Guerin Brothers, against John H. Blair. From a judgment for plaintiffs the defendant appeals.
Judgment affirmed. COUNSEL
Arthur C. Webb, of Los Angeles, and Charles Reagh, of San Francisco, for appellant.
Latham & Watkins, of Los Angeles, John G. Evans, of San Francisco, and James W. McNabb, of Los Angeles, for respondents.
OPINION
McCOMB, Justice.
From a judgment in favor of plaintiffs after trial before the court without a jury in a claim and delivery action, defendant appeals.
The record supports the following facts:
On January 8, 1946, plaintiffs leased a tractor and power unit control to Vergil Grove for a monthly rental of $3,750. The lease contained a provision prohibiting the subletting of the equipment, and a condition No. 13, reading:
‘Should the Lessee defer any payment more than 30 days or substantially violate any provision hereof, the Lessor may, after three days’ notice, terminate this agreement, take possession of the equipment without becoming liable for trespass and recover all rental due, * * *.’
On January 15, 1946, in violation of the provision in the lease, Mr. Grove sublet the equipment to defendant, who took possession of it and paid Mr. Grove $800 a month rental for two months. Thereafter plaintiffs located the equipment in defendant’s possession, demanded its return on September 6, 1946, and on the following day filed the present claim and delivery action. The equipment was delivered to the sheriff of Los Angeles County on September 12, 1946, and thereafter judgment was entered in favor of plaintiffs in the present action for damages in the sum of $5,120.
Questions
First: Since plaintiffs had leased the equipment to Mr. Grove, who was rightfully in possession thereof, and who in turn, in violation of a provision in the lease, sublet it to defendant, were plaintiffs (a) estopped to assert their claim against defendant, and (b) was it a prerequisite to the accrual of plaintiffs’ cause of action that they make demand upon defendant for the return of the property?
This question must be answered in the negative. Where the possession of personal property is obtained in good faith or otherwise from a person who has no right to transfer such property, a right of action accrues against the transferee as soon as he acquires possession of the property, and it is not a prerequisite to the owner’s filing a claim and delivery action that he make demand for his property. (Harpending v. Meyer, 55 Cal. 555, 558 et seq.)
The foregoing rule is applicable to the present case. By the very terms of the agreement of the lease under which Mr. Grove obtained possession of the property here involved, his right to possession was a limited one and he was prohibited from subleasing the property. Therefore, when he transferred it to defendant, defendant’s possession was unlawful and it was unnecessary for plaintiffs to make a demand for the return of their equipment. (First National Bank v. Thompson, 60 Cal.App.2d 79, 82, 140 P.2d 75.)
Second: Was it a prerequisite to plaintiffs’ maintaining the present action that they give the three-day notice required by condition No. 13 in the lease between plaintiffs and Mr. Grove?
This question must also be answered in the negative. The present action is not predicated upon the lease between plaintiffs and Mr. Grove or for the breach of any condition thereof by defendant. It is based upon the fact that defendant is unlawfully in possession of property belonging to plaintiffs, hence the provision of the lease relative to notice is immaterial in this action.
Davenport v. Alexander, 53 Cal.App. 688, 200 P. 771, relied on by defendant, is not here in point for the reason that in the cited case, defendant had come into possession of the personal property lawfully, and hence demand for its return was a prerequisite to a claim and delivery action. In the present case, defendant came into possession of the property unlawfully .
Third: Did the trial court commit prejudicial error in excluding (a) evidence that defendant had requested Mr. Grove to remove the equipment after he had had it for two months, and (b) the record of another suit in the Superior Court between plaintiffs and Mr. Grove involving the property in question in the present case?
This question must likewise be answered in the negative.
(a) Evidence that defendant had requested Mr. Grove to take possession of the equipment and that he in fact did not do so would not relieve defendant of liability for wrongfully having possession of plaintiffs’ property. The proffered evidence was immaterial and therefore properly excluded.
(b) It is conceded that defendant was not a party to the suit between plaintiffs and Mr. Grove. Evidence was not introduced, nor has defendant pointed out in his briefs any reason why the record in another action to which defendant was not a party would be material or binding on defendant in this case. The trial court’s ruling was correct.
Fourth: Was the amount of damage awarded defendant excessive?
This question must be answered in the negative. The finding was supported by evidence which disclosed that the reasonable rental value of the equipment was $800 per month; that defendant had possession from January 15, 1946, until September 12, 1946; that plaintiffs had received payment for rentals to March 1, 1946; thus defendant was chargeable with the reasonable rental value of the equipment from March 1, 1946, to September 12, 1946, a period of six months and twelve days. Based on these facts, the judgment in the amount of $5,120 was correct.
The judgment is affirmed.
MOORE, P. J., and WILSON, J., concur.