Opinion
Hearing Granted by Supreme Court May 26, 1939
Appeal from Superior Court, Los Angeles County; Frank G. Swain, Judge.
Action by Charles W. Story against Estelle Porter Christin and Charles A. Christin, her husband, for damages for conversion of personal property. From a judgment for the defendants, the plaintiff appeals.
Reversed. COUNSEL
Clyde C. Shoemaker, of Los Angeles (Winthrop O. Gordon, of Los Angeles, of counsel), for appellant.
Guthrie & Darling, of Los Angeles, and Charles A. Christin, of San Francisco, for respondents.
OPINION
McCOMB, Justice.
From a judgment in favor of defendants predicated upon the trial court’s sustaining an objection to the introduction of any evidence on the ground that the complaint as amended failed to state a cause of action in a suit to recover damages for the conversion of personal property, plaintiff appeals.
So far as material here the complaint as amended alleged:
"That during all the times herein mentioned the defendant Estelle Porter Christin was the owner of the legal title of the land hereinafter particularly described; that on or about the 17th day of February, 1922, the defendant Estelle Porter Christin, as vendor, made and entered into an agreement in writing with the plaintiff, as vendee, wherein and whereby the defendant agreed to sell and convey unto said plaintiff, and said plaintiff agreed to buy from said defendant, all that certain tract of land situated in the County of Los Angeles, State of California, and bounded and particularly described as follows, to-wit: (Description of real property.) for the purchase price of ninety-eight thousand eight hundred eighty-five dollars ($98,885.00) payable on or before five (5) years after June 1, 1922. That at the time said agreement was made said plaintiff was already in the possession of said described real property as a tenant under a lease from said defendant, and said plaintiff, from and after the date of said agreement of purchase was actually in the possession of said described real property, and thereafter set out said property to citrus trees and walnut trees, and cultivated, irrigated and farmed said premises, and grew and raised on said property, and removed therefrom, various crops, together with nursery stock consisting of small Valencia orange trees and walnut trees, and sold and removed nursery stock from said premises from time to time, all with the knowledge of said defendants.
"That thereafter, to-wit, on or about the 8th day of June, 1927, said plaintiff made and entered into another agreement in writing with said defendant Estelle Porter Christin, wherein and whereby the term of said agreement dated February 17, 1922 was extended for an additional period of three (3) years, and wherein and whereby said defendant agreed to sell and convey to said plaintiff and said plaintiff agreed to buy from said defendant all of said described parcel of land for the purchase price of one hundred thousand dollars ($100,000.00) payable on or before three (3) years after June 1, 1927, and that said agreement last mentioned was an extension of the term of said former agreement of February 17, 1922, and was made and entered into by way of substitution and took place of said former agreement of February 17, 1922. That said plaintiff had been continuously in actual possession of said described land under said former agreement of February 17, 1922, and was in actual possession of and farming and cultivating said land, as aforesaid, at the date of said subsequent agreement, to-wit, June 8, 1927, and that on the 8th day of June, 1927, and when said subsequent agreement was made, and during all the times herein mentioned until on or about January 25, 1929 said plaintiff was occupying, cultivating and farming said described land and was growing and producing thereon, and removing therefrom and selling various crops from time to time, including nursery stock, consisting of small orange trees set closely together, and planted for the purpose of being removed and marketed, all with the knowledge and consent of said defendants.
"That thereafter on or about the 25th day of January, 1929 and at all times thereafter, the said defendants wrongfully and unlawfully prevented the plaintiff from removing from said described real property, and wrongfully and unlawfully withheld and detained from the possession of plaintiff, and said defendants wrongfully and unlawfully converted to their own use the following described property, to-wit, nursery stock and nursery trees, consisting of orange trees, planted closely together in rows on said real property, to-wit:
"(1) 9,000 Valencia orange buds, approximately one (1) year old.
"(2) 4,000 Washington navel orange buds.
"(3) 12,000 orange seedlings, budded with Valencia orange buds, still dormant.
"(4) 4,500 orange seedlings, budded with Washington navel orange buds, still dormant.
"(5) 1,500 orange seedlings, approximately one (1) year old, unbudded.
"That all of said described nursery stock and nursery trees up to said time, to-wit, January 25, 1929, were in the possession of the plaintiff, and the said plaintiff had the right of possession of said nursery stock and nursery trees, and the said nursery stock and nursery trees had been planted and grown upon said described property by the plaintiff under his occupancy of said premises by virtue of his aforesaid agreement of purchase and while in possession of said premises as vendee under said agreements. That all of said nursery stock and nursery trees were planted and grown upon said premises by the said plaintiff as a part of the operation by him of a general nursery business; that all of said nursery stock and nursery trees were planted and grown in the manner customary in the general operation of a nursery business in that they were planted closely together and in rows and in such close proximity to each other that at all times it was impossible for the said trees to remain in said position and condition more than for a short period, and thereafter develop and become a part of a producing orange orchard; that said trees were planted as herein set forth, with the intention and with the purpose, as defendants herein well knew, that after a short period of time they would be removed, marketed and sold; that many of said trees at the time of said conversion by said defendants had been contracted to be sold by the plaintiff to various third parties and had been sold by the plaintiff on future delivery to third parties; that plaintiff at the time of said conversion was endeavoring to sell the remainder of said nursery stock and nursery trees in the open market; that none of said trees as planted and standing upon the premises at the time of said conversion were ever intended to be any part of an orchard situated on said premises, and that the only purpose and intention of planting and growing said nursery trees as they were then situated was that they might be developed sufficiently to become saleable as a marketable chattel; that the said defendants and each of them, during all of said times, had full knowledge of all the facts and matters hereinbefore alleged, and the said defendants at all times understood the said purpose and had knowledge of said intention of the plaintiff, as previously set forth in this paragraph, in planting and growing said nursery stock and nursery trees, and consented to the planting, growing, removing and sale of the said nursery trees and nursery stock upon and from said property, as hereinbefore alleged, and that all of the parties hereto understood and intended that said nursery trees should not become permanently annexed to said real estate and should remain the personal property of plaintiff herein, and that the same should be removed and sold to various third parties and thereafter transplanted for the purpose of being later set out in orchards; that plaintiff is informed and believes and therefore states, that the said defendants had knowledge of and consented to the aforesaid sales and contracts of sale of the said nursery stock and nursery trees at the time of said conversion.
"That the plaintiff on or about the said 25th day of January, 1929, and thereafter notified said defendants that they were wrongfully withholding and retaining possession of all of said described nursery stock and nursery trees, and demanded that said defendants immediately deliver all of said nursery stock and nursery trees to the plaintiff, or permit the plaintiff to take and remove the same from said premises, but that said defendants, and each of them, at all times failed and refused to comply with any such demand on the part of the plaintiff, and the defendants thereafter wrongfully took possession of and appropriated all of said described nursery stock and nursery trees, and wrongfully converted the same to the defendants’ own use, to the damage of the plaintiff in the sum of twenty-seven thousand dollars ($27,000.00), and that at all of said times the plaintiff was the owner and entitled to the possession of all the aforesaid nursery stock and nursery trees; that the value of said nursery stock and nursery trees at said time was said sum of twenty-seven thousand dollars ($27,000.00).
"That by reason of the aforesaid wrongful acts of the defendants, the plaintiff has suffered and sustained damages in the sum of twenty-seven thousand one hundred dollars ($27,100.00), no part of which has been paid.
"Wherefore, the plaintiff prays judgment against the defendants, and each of them, for the sum of twenty-seven thousand one hundred dollars ($27,100.00), together with interest at the rate of seven (7) per cent per annum from January 25, 1929, and for costs of suit and for general relief."
This is the sole question to be determined:
Did the complaint as amended state a cause of action?
This question must be answered in the affirmative, and is governed by these pertinent principles of law:
(1) In ruling upon an objection to the introduction of any evidence upon the ground that a complaint fails to state facts sufficient to constitute a cause of action, the same rules are applicable as in ruling upon a general demurrer, to-wit: (a) All the facts alleged in the complaint are assumed as true for the purposes of the objection, (b) grounds of special demurrer are deemed waived, and (c) defensive matter pleaded in the answer is not considered. Tucker v. Howe, 139 Cal.App. 161, 162, 33 P.2d 1055; Venturi v. Zurich General A. & L. Co., 14 Cal.App.2d 89, 90, 57 P.2d 1002.
(2) The intention of the parties is controlling in determining whether an article affixed to land is a fixture and part of the realty or is personalty. Southern California Telephone Co. v. Board of Equalization, Cal.Sup., 82 P.2d 422.
Applying the foregoing rules to the pleading in the instant case, it is apparent that, for the purpose of ruling upon the objection, the trial court was bound to assume that the parties intended the trees and nursery stock planted in the ground to remain personal property, since it is alleged in the pleading, among other things, as follows: "That all of the parties hereto understood and intended that said nursery trees should not become permanently annexed to said real estate and should remain the personal property of plaintiff herein".
Had plaintiff introduced substantial evidence to sustain the foregoing allegation and the other material allegations of the complaint, the trial court could properly have made findings that would have supported a judgment in favor of plaintiff as prayed.
There is no merit in defendants’ contention that plaintiff’s attorney made an admission at the time of the trial which now precludes plaintiff from relying upon the foregoing rules of law. During the course of argument the following colloquy took place between the court and counsel for plaintiff:
"The Court: I would like to ask counsel for plaintiff one thing in connection with the statement of what he expects to prove. Is there any written agreement between the parties which you expect to introduce in evidence which gives the plaintiff the right to remove the nursery stock after a forfeiture?
"Mr. Shoemaker: No. The written contracts were the contracts referred to, the contracts of purchase and sale.
"The Court: There is nothing in those contracts which refers to the right of removal, one way or the other?
"Mr. Shoemaker: That is right, Your Honor." The above conversation at best constituted but an admission by plaintiff’s counsel that there was no mention in the written contracts of the parties as to whether or not the trees and nursery stock were to be deemed personal property. For aught that appears from the record there may have been an oral agreement between them in conformity with the allegation in plaintiff’s pleading. If this were true, proper proof thereof would support a finding that the parties had agreed that the property in question should be considered as personal property.
For the foregoing reasons the judgment is reversed.
We concur: CRAIL, P.J.; WOOD, J.