Summary
In Niles v. Edwards, 90 Cal. 10, 13, it was said: "There is a finding that defendant did not at any time convert the stock.
Summary of this case from Ions v. HarbisonOpinion
Department Two
Rehearing 90 Cal. 10 at 14.
Appeal from a judgment of the Superior Court of the city and county of San Francisco.
COUNSEL
The superior court finds special facts which plainly show that there was a conversion by defendant of plaintiff's stock. The court also says that there was no conversion. This statement is rather a conclusion of law than a finding of fact. (Pomeroy's Remedies and Remedial Rights, 2d ed., sec. 510.) And a conclusion of law cannot be regarded as a finding of fact. (Paulson v. Nunan , 64 Cal. 290; Levins v. Rovegno , 71 Cal. 273.) Even if not a conclusion of law, the finding that there was no conversion is so general that the other particular ultimate facts found, if inconsistent with it, must be held to control. (Hidden v. Jordan , 28 Cal. 305, 306; Warder v. Enslen , 73 Cal. 291, 294.) The pledge having been a specific one, it was not subject to Kate Armstrong's general account; and this is so, especially when defendant knew the true ownership at a time when the stock was unencumbered. (Jones on Pledges, sec. 357.)
O'Brien, Morrison & Daingerfield, for Appellant.
Arthur Rodgers, for Respondent.
Plaintiff, having allowed Kate Armstrong to assume the apparent ownership of the property for the purpose of pledging it, is estopped from setting up her title as against defendant. (Civ. Code, sec. 2991; Ambrose v. Evans , 66 Cal. 74; Davis v. Russell , 52 Cal. 611; 28 Am. Dec. 647.)
JUDGES: Temple, C. Belcher, C., and Fitzgerald, C., concurred.
OPINION
TEMPLE, Judge
Appeal from the judgment on the judgment roll.
Judgment on the findings was for defendant; the plaintiff, who takes this appeal, claims that the findings do not support the judgment, but, on the contrary, show that plaintiff was entitled to recover. It appears from them that defendant was a stock-broker and a member of the Stock and Exchange Board. Plaintiff was the owner of one hundred shares of stock in the Ophir Mining Company. This certificate, like many others, as the practice was, had been issued to a trustee, who had indorsed it in blank, in which form it passed from hand to hand without further assignment.
Plaintiff delivered this certificate to one Armstrong, to enable her to pledge it as security for the purchase of fifty shares of stock in the Gould and Curry Mining Company. For that purpose Armstrong deposited the certificate with defendant, who accordingly purchased the Gould and Curry stock, and afterwards sold it on Armstrong's account at a profit.
Armstrong was indebted to defendant at the time this stock was deposited with him, on a previous account. Defendant had no notice at that time of plaintiff's ownership, but was notified of such fact about two months afterwards.
It is not specifically found that the stock was pledged for the pre-existing debt, but only that Armstrong was indebted to defendant and deposited the certificate, and thereupon he purchased the Gould and Curry stock.
The Gould and Curry stock was sold March 1, 1886; and November 17, 1886, plaintiff demanded from defendant the stock and offered to pay any proper charges against it, which demand defendant refused to comply with, and also notified plaintiff that a tender was unnecessary, as he would not deliver the stock.
The findings are somewhat defective here, but we take it for granted that in offering to pay all proper charges plaintiff did not propose to pay the indebtedness of Armstrong, but simp ly assessments and outlays made by defendant [27 P. 160] upon the stock. The sale of the Gould and Curry stock more than repaid the new loan.
Defendant held the stock until July, 1887, when he sold it, applying the proceeds to the indebtedness of Armstrong to himself.
The findings show the market value of the stock and the amount of damages to which plaintiff is entitled, if it be held that there was a conversion by the defendant. And upon that subject we entertain no doubt. The plaintiff is clearly entitled to judgment.
The apparent ownership of Armstrong is not shown to have resulted in injury to the defendant. On the contrary, he is better off by the transaction than he would have been by the amount of the profit realized on the Gould and Curry stock.
There is no claim that he was induced to forego any remedy he may have had against Armstrong by reason of the pledge, or that he was any worse off in any way with reference to such indebtedness. After the moneys were repaid which were advanced on the stock, we think defendant did not hold the pledge in good faith and for value, in the sense of section 2991 of the Civil Code.
There is a finding that defendant did not at any time convert the stock. This is evidently a conclusion of the court from the special facts found. If there had been no other finding, this would probably be regarded as the ultimate fact; but in the connection in which it is here found, it is simply a conclusion of law, and must be so held.
We think the judgment should be reversed, and the court below directed to enter judgment for plaintiff on the findings
The Court. -- For the reasons given in the foregoing opinion, the judgment is reversed, and the court below is directed to enter judgment for the plaintiff on the findings.