"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.
[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.
[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.
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].)
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.
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.
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.
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.
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.
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.