Child v. Hugg

41 Cal. 519 | Cal. | 1871

By the Court, Temple, J.:

This appeal presents only a case of conflicting evidence. The testimony of the plaintiffs is sufficiently positive that the account presented to the defendant was acceded to by him, and the finding of the Court supports that view. It may be admitted that defendant was entitled to notice to make his margin good before the stock which was pledged could be sold; also, that the notice of the time and'place of sale was insufficient. Still, if the evidence of plaintiffs is to be taken as true, defendant did know in advance of the contemplated sale, and of the timé and place, and made no objection, and that after the sale he was presented an account, in which he was credited the amount received at the sale; that, knowing all the facts, he admitted the correctness of the account, and even approved of the sale, and repeatedly afterward promised to pay the balance claimed to be due; that he never, on any occasion prior to the bringing of the suit, objected to the correctness of the account, or to the sale, on account of want of notice, or for any other reason. If this testimony be true, it is sufficient to sustain the finding that the sale had been ratified by the defendant, and we do not feel at liberty to disturb the finding of the Court on that point.

For the same reason, it is not necessary to consider the point made that a sale in the Board of Brokers, where the general public are not at liberty to bid, is not a sale at public auction, such as a pledgee of stock is authorized to make upon default being made by the pledgor.

Judgment and order affirmed.