Opinion
Hearing Granted by Supreme Court Dec. 13, 1931.
Appeal from Superior Court, Los Angeles County; Vaughn N. Thompson, Judge.
On Petition for rehearing.
Petition denied.
For original opinion, see 4 P.2d 167.
CRAIG, J., dissenting.
COUNSEL
Philip Cohen, of Los Angeles, for appellants.
H. H. Harris and David E. Field, both of Los Angeles, for respondent.
OPINION
FRICKE, Justice pro tem.
Respondent petitions for a rehearing as to that part of the cause of action relating to the five notes which were due and unpaid at the time of the trial. It is contended that, while the action is for money had and received, the gist of the action is conversion, that an action for money had and received is a proper remedy for conversion, and that therefore respondent was entitled to recover in this action a sum of money equal to his assignor’s interest in the five notes in question.
The theory upon which the rehearing is asked, that where an action of conversion will lie the plaintiff may waive the tort and sue for money had and received, is, as counsel state, well recognized in California but the application of the rule rests upon the major premise that the facts show a conversion.
The defendants came into possession of $30,000 in money and twelve notes of $4,000 each, of which notes seven had been paid and five were neither due nor paid at the time of the trial. The notes and cash came into defendants’ possession under the terms of a settlement agreement with the consent of respondent’s assignors, and, under the law of the case, the latter were entitled to approximately a one-third interest therein. This possession of the notes and cash was undoubtedly lawful, and gave rise to no action for conversion. There is no proof of any affirmative act of conversion, but respondent relies upon proof of a demand and refusal. This proof consists of the testimony of Arthur Bard that he told L. L. Bard he had "additional moneys coming on this settlement with the Far West and he said I did not," and some further testimony from Arthur Bard that he told L. L. Bard that certain items representing "cash investment" were to be divided "fifty-fifty" between them, and that some $1,300 of rentals were to be taken out of the balance in the same proportion, and that the "balance of the money " (italics ours) was to be divided in proportion to the stock held by each of them. The demand, if any, therefore, was for "money," while the funds were in the form of money and notes, and included the foreign item of rentals. The burden being upon petitioner, we must assume that the only evidence of a demand is that to which we are referred in the "Addenda" to the petition.
It is elementary that a demand for that to which a party is not entitled justifies a noncompliance therewith, and that a demand for "money" is not a demand for promissory notes. Even had Arthur Bard demanded his pro rata share of the money and notes, the refusal of L. L. Bard to turn the notes over to him would not have been a conversion. Arthur Bard was not entitled to the possession of the notes or to the entire notes, but only to an interest therein with his co-owner of the notes in the proportion of 413 to 1,357. All he could demand was that to which he was entitled, and his right to his share of the money realized from the notes could not arise until the notes were paid. The defendants were justified in refusing to pay a sum of money equal to the interest of respondent’s assignors in the notes until the same were paid by the makers. At the time of the trial the five notes here involved had not been paid. As there was no conversion, the rule relied upon by petitioner has no application, and the action is one which can apply only to the "money" received by defendants and appellants up to the time of the trial.
The petition for a rehearing is denied.
I concur: WORKS, P. J.
CRAIG, J.
I dissent from the order denying the petition for a rehearing. The action is one for assumpsit based upon the conversion of promissory notes. The evidence showed such conversion, and the trial court gave judgment upon that theory, after making appropriate findings. To my mind, this court is not permitted to regard the transaction or cause of action differently, and therefore may not give consideration to the question of the maturity of the notes. I am now of opinion that the judgment should have been affirmed, and under any circumstances that the status of the matter is such that the petition for a rehearing should be granted. Bechtel v. Chase, 156 Cal. 707, 106 P. 81; Pacific Fruit Exchange v. Booth, 103 Cal.App. 54, 283 P. 944; Dodge v. Meyer, 61 Cal. 405.