Wood v. McDonald

11 Citing cases

  1. San Diego Construction Co. v. Mannix

    175 Cal. 548 (Cal. 1917)   Cited 40 times
    In San Diego Construction Co. v. Mannix, supra, 175 Cal. 548, the buyer paid $12,500 down on a $92,636 purchase price, and gave a trust deed to secure the payment of the balance in five installments, the first of which was due July 8, 1913, and then in four annual installments commencing January 8, 1914.

    "The law does not require the performance of a useless act, and when it is made to appear by the defendant's own act that the demand would have been refused, then they cannot be heard to object that no demand was made." ( Remy v. Olds, 88 Cal. 542, [26 P. 355]; Parrott v. Byers, 40 Cal. 623; Wood v. McDonald, 66 Cal. 546, [6 P. 452].) The defendant had received the payments and knew the amounts paid.

  2. Weinberg v. Dayton Storage Co.

    50 Cal.App.2d 750 (Cal. Ct. App. 1942)   Cited 18 times

    [4] It is well-settled in this state that there is no necessity for a demand where the acts of the defendant in relation to the property show a conversion, or where, under the facts, a demand would be futile. ( Mier v. Southern California Ice Co., 56 Cal.App. 512 [ 206 P. 83]; Wood v. McDonald, 66 Cal. 546 [6 P. 452]; Lowe v. Ozmun, 3 Cal.App. 387 [ 86 P. 729]; Fiedler v. Allen, 117 Cal.App. 622 [ 4 P.2d 292]; Yamada v. Osawa, 12 Cal.App. (2d) 133 [ 54 P.2d 1135]; Metzler v. Foster Holding Co., 5 Cal. (2d) 278 [ 54 P.2d 447].) Each case must turn upon its own facts.

  3. Peet v. People's Trust and Savings Bank

    56 Cal.App. 46 (Cal. Ct. App. 1921)   Cited 8 times

    [6] It is, of course, the general rule that a demand is necessary in such a situation, but it is not always required. Where, for instance, a demand would be unavailing, it need not be made ( Wood v. McDonald, 66 Cal. 546 [ 6 P. 452]; Hand v. Scodeletti, 128 Cal. 674 [ 61 P. 373]), for it would then be an idle ceremony. So it would have been here.

  4. Burkett v. Doty

    32 Cal.App. 337 (Cal. Ct. App. 1916)   Cited 10 times

    The evidence showed a conversion by defendant. (38 Cyc. pp. 2005, 2009; Dodge v. Meyer, 61 Cal. 405; Wood v. McDonald, 66 Cal. 546, [6 P. 452].) Defendant cannot escape liability on the ground that he was acting as the agent of Mrs. Doty. (28 Am. Eng. Ency. of Law, p. 688; 38 Cyc. p. 2056 (d); Swim v. Wilson, 90 Cal. 126, [25 Am. St. Rep. 110, 13 L. R. A. 605, 27 P. 33].)

  5. Faulkner v. First National Bank of Santa Barbara

    130 Cal. 258 (Cal. 1900)   Cited 30 times
    In Faulkner v. First Nat. Bank, 130 Cal. 258 [ 62 P. 463], it was held that where the defendant obtained possession lawfully under a contract of bailment, but detained the property unlawfully, an action may be maintained to recover possession of the property or its value from the bailee, even though prior to the commencement of the action the bailee has wrongfully transferred the property to other persons.

    An action to recover the possession of personal property cannot be maintained when the property is not in the possession of the defendant at the commencement of the action. (Code Civ. Proc., secs. 509, 667; Riciotto v. Clement, 94 Cal. 105, 107, 108; Hawkins v. Roberts, 45 Cal. 38.) An averment of demand and refusal is not an averment of a conversion, but of matter of evidence only. (Balch v. Jones, 61 Cal. 234; Wood v. McDonald, 66 Cal. 546; Webb's Pollock on Torts, ed. 1894, 436; Perry's Common Law Pleading, 92; 2 Greenleaf on Evidence, 15th ed., sec. 649.) No conversion was proved, there being no proof of immediate right of possession at time of the alleged conversion.

  6. Schultz v. McLean

    93 Cal. 329 (Cal. 1892)   Cited 33 times

    And where such is the case, none is necessary. (Gray v. Dougherty , 25 Cal. 282; Parrott v. Byers , 40 Cal. 622, 623; Wood v. McDonald , 66 Cal. 546; Mattocks v. Young , 66 Me. 459; Duffy v. Patten , 74 Me. 396.) The findings are, when read as a whole, sufficient to sustain the judgment on the ground of fraud.

  7. Remy v. Olds

    88 Cal. 537 (Cal. 1891)   Cited 11 times

    The law does not require the performance of a useless act, and when it is made to appear by the defendant's own act that the demand would have been refused, then they cannot be heard to object that no demand was made. (Parrott v. Byers , 40 Cal. 614; Wood v. McDonald , 66 Cal. 546.)          While we are of the opinion that the first cause of action, as stated in the amended complaint, is not entirely free from defects, some of which might have been reached by special demurrer, yet on the whole we are satisfied that it states facts sufficient to constitute a cause of action.

  8. Goldstein v. Nunan

    66 Cal. 542 (Cal. 1885)   Cited 13 times

    The evidence, pro and con, as to an actual delivery and continued change of possession, was submitted to the jury; and as there was a conflict in it, we cannot set aside the verdict on the ground that the facts proved conclusively show no continued change of possession.          As the defense was that there was no continued change of possession, and as the jury were instructed that unless there was an actual delivery, and an actual and continued change of possession of the property, the sale was fraudulent as against creditors, the error in [6 P. 452] admitting in evidence statements made by Goldstone to attaching creditors prior to the sale (if error it was) could not have injured the defendant, since the real issue, as to an actual delivery, etc., was unaffected by such evidence.          It is contended by appellant that the court below erred in denying defendant's motion to strike out all parol evidence as to the bill of sale.

  9. McMillan Process Co. v. Brown

    33 Cal.App.2d 279 (Cal. Ct. App. 1939)   Cited 5 times

    Clearly, under the circumstances here disclosed, notice and demand would have been unavailing, and any further proof of such notice and demand is not necessary. ( Wood v. McDonald, 66 Cal. 456 [6 P. 452]; San Diego Const. Co. v. Mannix, 175 Cal. 548, 558 [ 166 P. 325].) As has been stated, the contract provided for an initial down payment of $2,000 upon the purchase price of $5,500 for each machine, the balance to be paid as royalties at 50 cents per ton for the defiberized product of said machines.

  10. Smith v. Jaccard

    20 Cal.App. 280 (Cal. Ct. App. 1912)   Cited 35 times
    In Smith v. Jaccard, supra, it is also pointed out that no penalty is provided on account of the failure of the reporter to complete his notes within twenty days after notice filed with the clerk.

    This, if true, entitled plaintiff to a return of her deposit money. ( Chatfield v. Williams, 85 Cal. 518, [24 P. 839]; Merrill v. Merrill, 95 Cal. 334, [30 P. 542]; Merrill v. Merrill, 102 Cal. 317, [36 P. 675]; Wood v. McDonald, 66 Cal. 546, [6 P. 542].) The court, upon a conflict of evidence, found in favor of plaintiff on this point, which makes the ruling of the court upon the demurrer, so far as it attacks, specially or otherwise, the allegations as to the supposed defect in the title immaterial.